Paul Burton, Head of Frettens‘ specialist employment law team, looks at the opening up of the economy and the implications for employers.
Monday 12th April is a date many of us have had in our diaries for some time now. Since Boris’ announcement of the roadmap out of lockdown, the date will have dominated many of your conversations and plans for the spring.
I, for one, had penciled it in as the date I could finally catch up with friends I haven’t seen in some time over a drink in a beer garden, and I cannot wait.
For many of you reading this, it will be the date you can finally get your lockdown hair sorted, go to the gym, or get out and support your favourite local retailer (whilst treating yourself – lord knows you’ve earned it with all that home-schooling).
However, as employers and members of the Dorset business community, there will inevitably be many things you’ll be considering as the economy begins to open back up and we see employees and customers or clients returning to our premises.
Over the past few months we’ve spent hours speaking with business owners about the ‘re-opening of workplaces’ and have pulled together answers to the most frequently-asked questions about employment law and HR in this article, which we hope you find useful.
The safe return to work
The official guidance is that all workers should still ‘work from home wherever possible’. Wherever workers are returning to the workplace, employers have a duty of care to keep them safe and follow government guidelines on social distancing and mask-wearing.
The Chamber have been great at supporting and advising businesses as they look to welcome back workers and customers into their businesses safely. In this article, we will focus on the implications for employers specifically.
Communicate effectively
One theme we have seen throughout the pandemic is the importance of clear communication.
There is a lot of uncertainty and anxiety around the re-opening of businesses, especially concerning what is safe and what is legal. Clear, empathetic communication with workers and customers alike is absolutely crucial to the smooth re-opening of the economy.
Remember, this communication should be two-way. Listen to feedback and concerns from workers as they return.
Working from home
For the majority of businesses, ours included. Working from home is here to stay. A recent YouGov poll showed that the majority of workers want to continue to work from home to some degree once everything is ‘back to normal’.
Working from home policies
With this in mind, all businesses should have a working from home policy. While there is no legal obligation to have a policy concerning working from home, any issues arising from employees working at home will be much easier to address if there is a policy in place. This also helps requests to be dealt with consistently and fairly.
Laws around vaccinations
No jab, no job
‘No jab, no job’ has been a popular mantra in recent weeks among those who believe that covid-19 vaccinations should be mandatory. Charlie Mullins of Pimlico Plumbers made the headlines in January for his typically controversial take on employee rights by announcing he would require all workers to be vaccinated.
Naturally, unions have responded very differently and are concerned that employers may use intimidation tactics such as this to require the vaccination without giving clear regard to the rights of individual workers.
Downing Street responded with their view on these policies earlier this week with an official spokesperson for the PM announcing that “taking a vaccine is not mandatory and it would be discriminatory to force somebody to take one”. However, it has also been reported that some cabinet ministers believe an employee could legitimately be dismissed for refusing to have the treatment.
So, who is right here and what are the risks involved in a business requiring its staff to have the vaccine?
Can an employer force staff to be vaccinated?
In the sense of physically restraining them and forcibly performing the vaccination, no. It goes without saying that physically forcing someone to have a vaccine would be a criminal offence.
Employers could have a policy in place requiring every member of staff to have the vaccine. An employer can have a policy in place requiring almost whatever it likes, the real question is whether that policy is lawful, what an employee can do in response and whether the employer would be liable legally.
There are two main areas where dispute is likely to arise. The first is whether refusing to have the vaccine in breach of such a policy would justify dismissal and the second is whether any such policy runs the risk of being discriminatory under the Equality Act.
Legal advice for employers on vaccinations
We have advised a lot of care providers on this issue and imagine there will be a lot of queries in the hospitality industry as it opens up.
We would recommend avoiding it as an absolute. A policy statement “requiring all employees to participate in the covid-19 vaccination programme” will be controversial, unpopular and does run the risk of individuals looking to claim if they feel victimised by it.
We would suggest a policy of active encouragement in most workplaces and this is likely to be sufficient. Where the business is a more specific role, such as in the care sector, a more carefully worded policy position such as it being an expectation that staff will be vaccinated could be more appropriate.
In these cases, employers will want to ensure staff are aware that the approach is subject to the equal opportunities policy and provide a point of contact for staff to speak to in the event of any objections.
My colleague Chris Dobbs looks in detail at this controversial issue in his recent article here. If you are an employer who would like to discuss it with me or my team, feel free to give us a call on 01202 499 255 or get in touch.
Long Covid and the effects on the workplace
Is Long Covid classed as a disability?
An individual severely affected by Long Covid may well be disabled under the Equality Act.
Employers will need to be aware that, just because someone is capable of doing their job, they are not precluded from falling within the definition and therefore being protected from discrimination and imposing on the employer the duty to consider and potentially make reasonable adjustments.
Long COVID: What do employers need to do?
It is probably safest to assume that Long Covid could be within the definition of a disability when making workplace decisions and to act accordingly. In most cases this will mean:
- Consulting with the individual about the effects of the illness;
- Seeking appropriate medical advice either from the employee’s own GP or an independent clinician;
- Ensure managers are trained in the sickness absence policies and how these related to absences which could arise from a condition which is a disability; and
- Be prepared to consider appropriate adjustments to accommodate the effects of the condition if it is a disability.
Remote monitoring of staff
With the inevitable increase in remote working, we have been approached by a number of employers about remote monitoring.
With recent surveys hinting that employees are more productive when working from home, it is not necessary in the majority of businesses to monitor employees remotely. In some circumstances, however, there are some instances when it can be.
Our advice, which we believe to be in line with the Information Commissioner’s guidance and the Data Protection Code of Practice is to have a clear policy in place in respect of telecommunications and monitoring of employees.
Can employers monitor staff working from home?
If absolutely necessary, open monitoring is preferable to covert surveillance and, in fact, covert surveillance should only be used in extreme circumstances and following a full impact statement.
Any monitoring should be carried out fairly and in the least intrusive way possible. Care should be taken where there is any risk of breaching data protection or where employees may be able to argue that they are being specifically targeted especially if it could seem discriminatory in nature.
Before embarking on any form of electronic monitoring of staff, we would strongly recommend you take legal advice on what your specific circumstances.
Paul and Chris will be talking with employers and HR professionals in their next webinar on May 12th, details for which can be found here.