Employment Law Update – July 2021
Thursday 22nd July 2021
Ending of furlough: the end of employment for some?
At the beginning of July 2021, the government’s contribution to furlough payments dropped while the requirement for an employer contribution was once again introduced. Prior to July 2021, the government paid 80% of employees’ wages whilst they were on furlough. There was no requirement for employers to ‘top up’. However, from 1st July the government contribution went down to 70%, meaning employers now have to make up the extra 10% themselves. From 1st August, this will drop to 60% with employers making up the extra 20%, before the scheme completely ends in September.
It is predicted that almost 500,000 workers will still be on furlough come September. This translates into an estimation that over 250,000 jobs could potentially disappear due to the continuing uncertainty of demand within different sectors as a result of the pandemic and the likely need for workforce restructuring. This would mean a rise in unemployment by as much as 273,000, leaving the rate of those without jobs at 5.5%, the highest it has been in 6 years.
Many employers are finding they do not have the capacity to simply ‘go back to normal’ and are therefore still relying on the Job Retention Scheme. If this is relevant to you, you need to prepare now that the Job Retention Scheme is coming to an end. It is important that you consider the options open to your business and to be proactive, and take advice on how to properly effect redundancies if these look to be necessary.
What can employers do to prevent the spread of COVID-19 at work?
The spread of the new delta variant has seen a large increase in the number of Covid-19 cases. People are socialising more regularly and attending work in person more often since the relaxation of restrictions, and some age groups are yet to receive both vaccines. This has led to an increase in the amount of staff needing to self-isolate which can be an issue for employers, especially where they do not have the facilities for their staff to work from home.
In order to help minimise the amount of employees needing to self-isolate due to the spread of COVID-19 in the workplace, employers are reminded that it’s sensible to take the following precautions:
- Ask employees to take their temperature on arrival to work (temperatures should be below 37.8ᵒC).
- Remind employees of the main Covid-19 symptoms and that they must stay at home and inform HR if they are suffering from any of them.
- Advise employees that the new delta variant brings more cold-like symptoms, therefore, if suffering from any symptoms of a common cold, they should not attend the office and should take a test.
- Remind employees to continue to social distance within the workplace.
- Encourage employees to take lateral flow tests at least twice a week to reduce asymptomatic cases.
- Remind employees to follow all hygiene guidance including frequent hand washing. Hand gel should be provided as well as wipes to clean down any surfaces.
Now that we are looking to return to some sense of normality, it is important that you keep your Covid-19 policies up to date to prevent the spread of the virus as much as possible. With the potential lifting of legal restrictions on 19 July, you should still take practical steps to protect your workforce even if the government no longer mandates it beyond this date. Not only will this help to reduce employee absences, but it will help to protect you against health and safety-related claims. Should you require any further advice on Covid policies and workplace health and safety, please do not hesitate to contact a member of the team.
A warning to employers – the flip side to home working
In the aftermath of the pandemic many workplaces are looking to adopt a more flexible approach to working. Working from home has become more common over the last 18 months and we are seeing more and more queries about flexible or hybrid working.
On the face of it, a move to flexible working is a progressive step to address the work-life balance of employees and there are undeniable benefits for employees. However, if you are looking to implement flexible working there are some important considerations to bear in mind to ensure that the move is not unintentionally detrimental or discriminatory.
Who will use it?
When deciding to introduce a flexible working policy you should consider which of your staff are most likely to make use of it.
Women are more likely than men to bear the bulk of childcare responsibilities. As such, women are also more likely to request to work from home to allow them to more easily manage childcare commitments alongside work.
Employees with disabilities, who suffer with health conditions, or those who are older may be equally likely to request flexible working, preferring to work instead from their own home.
As such, those most likely to elect to work from home are those often underrepresented in the workplace already.
How could working from home be detrimental?
A recent ONS study concluded that over the last 10 years, employees who worked from home were overlooked when being considered for promotion as a result of less face to face interaction with their colleagues and managers. Homeworkers were also around 40% less likely to receive training or education relating to their job.
This trend is likely to continue once things return to ‘normal’. If other employees return to the office full time, those spending more time at home could miss out on the opportunity to build strong relationships with their colleagues and managers which could cause them to feel less connected to their team and lead to their exclusion from important discussions and opportunities.
There is a real risk that employees who frequently work from home could be forgotten or left out simply because they are not immediately visible. This could result in missed opportunities for learning, not being considered for promotion, and could ultimately be detrimental to their career progression through no fault of their own.
If the majority of home workers are women with childcare responsibilities, disabled or older employees, there is risk of perpetuating inequality and discrimination by continuing these trends.
What can employers do?
Address the disparity:
- Employees at all levels should be encouraged to take part in flexible working. From directors and senior managers all the way down to entry-level staff, regardless of gender, age, disability or childcare responsibilities to ensure that it is not only female, disabled or older employees who take part.
- Be aware of who is requesting to work from home and monitor the situation to ensure that uptake is consistent across the company
- Employees should be reassured that a request for flexible working will not be viewed negatively and is encouraged– some employees who do not ‘need’ to work from home may be hesitant to request it for fear of it being viewed as a lack of commitment.
- Seek advice on whether any proposed policy could cause or increase any disparity or be discriminatory.
Address communication issues:
- Steps should be taken to ensure communication with employees working from home is consistent. Many teams used daily or weekly video calls during lockdown, these could be continued to ensure employees working remotely are still included in discussions.
- You could implement more frequent reviews to ensure that the achievements of those working from home are not overlooked or forgotten.
- You should create learning opportunities for staff members working remotely e.g. online learning.
- A training log could be kept and regularly reviewed to help maintain a consistent level of training and to ensure remote workers are not left behind.
As with all such policies, it’s essential to monitor their effects and implementation and to regularly review them. Effective communication with staff will be critical in terms of honest feedback to address any concerns as well as recording the positives.
The impact of child care on women still a major issue when changing work patterns
The difference in child care responsibilities between men and women must be considered in indirect discrimination cases, and is no longer a matter requiring statistical evidence or debate. Essentially judicial notice should be taken that it is a matter of fact that women bear the greater burden of childcare responsibilities compared to men as was decided by the Employment Appeal Tribunal in Dobson v North Cumbria Integrated Care NHS Foundation Trust.
Dobson was a community nurse who had worked set days of Wednesdays and Thursdays for a number of years to coincide with childcare for her three children. The Trust introduced a flexible working requirement under which nurses would work one weekend once a month. Dobson was unable to comply with this requirement due to childcare issues and therefore raised a grievance. Dobson was offered re-engagement on new terms which she did not accept, resulting in her dismissal. Her appeal to her employer was rejected and her claim to the Employment Tribunal for unfair dismissal, victimisation and indirect sex discrimination was dismissed, so she appealed the decision.
The Employment Appeal Tribunal held that the Employment Tribunal had not correctly applied the law. The Employment Tribunal stated that Dobson had not provided adequate evidence that women would be disadvantaged by the policy. However, the Employment Appeal Tribunal stated the fact that women bear the greater burden of childcare responsibilities compared to men, which can limit their ability to work certain hours, is an established fact and should be considered by Judges without necessarily requiring any statistical evidence.
With many workplaces switching to shift work to accommodate COVID-19 precautions, it is important to note that a requirement to work certain hours will usually disproportionately disadvantage women due to childcare responsibilities. You should seek advice before effecting compulsory changes to working hours or introducing policies which may disproportionately affect one group of employees to mitigate the risks of indirect discrimination claims.