We recently held an insightful virtual roundtable with a group of our senior HR contacts. The session was moderated by Deborah Warren, Legal Director at Clarion, a leading law firm based in Yorkshire.
During the session, we discussed key questions which are dominating the conversations for HR teams, namely surrounding:
- Employers’ rights on asking employees to return to the workplace
- Mandatory vaccinations
- COVID testing in the workplace
- Supporting employees with ‘Long COVID’
Is full-time remote working here to stay?
The mass 'work from home' experiment has proven businesses can survive, and even thrive, without their employees physically in the office. However, as we return to some resemblance of our pre-COVID lives, many professionals say they do not want to return to the office full-time. So where does this leave employers?
During the round-table, Clarion explained that it will be important to communicate with employees in advance about any proposed return to the office, particularly in relation to any health and safety measures taken.
If an employer anticipates that some employees may wish to continue working remotely, or at least adopt a hybrid model, as a first step employers should consider each employee’s contractual workplace location, bearing in mind that this may have changed as a result of working from home during the pandemic. If the employee’s contractual workplace location is at the employer’s premises, the employer will be in a stronger position.
However, provided that the employee has been continuously employed for at least 26 weeks, they will have a statutory right to request flexible working. Employees may also make requests to change their working arrangements informally. It is important that employers consider all such requests carefully.
As an employer, you are not obliged to grant such requests, but it might be more difficult to deny these requests than before the pandemic if the individual has been working from home effectively for the past 18 months or so.
ACAS (the Advisory, Conciliation and Arbitration Service) has published a code of best practice on handling flexible working requests. The legislation permits you to refuse a flexible working request on eight business grounds. However, employers should be cautious because depending on the reason for the request, it is possible for a refusal to constitute discrimination and constructive dismissal.
Also, it must be said, forcing your employees back into the workplace may do considerable long-term damage to your employer brand, employee engagement and retention.
The advice at our session is to tread carefully if you receive such requests, and engage employment law advice before you take action, so as to avoid accusations of discrimination and other proceedings.
Are mandatory vaccinations enforceable?
Businesses have a legal obligation to protect the health and safety of their employees. Many organisations have steps to ensure their workplaces are COVID-secure. As an employer, you have a duty of care for your employees. COVID-19 remains a reportable disease, and you have a responsibility to keep your people safe.
In England and Wales, the Public Health Act 1984 gives the government the authority to prevent, control and mitigate the spread of infection. In April 2021, the UK government announced that it intended to bring forward regulations to ensure that those entering CQC registered care homes in England must be fully vaccinated against COVID-19, save for a few exemptions.
The regulations have now been approved by both Houses of Parliament. There will be a 16 week grace period for those impacted to ensure they are vaccinated.
The exemptions include those who are medically exempt from being able to have the vaccination, but they do not exempt those who do not wish to have the vaccination for other reasons which may be protected by the Equality Act 2010 (e.g. their religion or beliefs, or pregnancy).
Making vaccinations mandatory raises multiple legal and practical issues. For example, there may be arguments regarding potential consultation requirements, discrimination, invasion of privacy, GDPR, personal injury and constructive unfair dismissal.
Deborah explains, the best way to steer through this situation is to engage an employment law specialist, as they are the people best placed to help you navigate this area effectively.
Are COVID-19 rapid tests appropriate in the workplace?
There is no legal requirement for workplace testing in the UK. However, this is the route many businesses are taking. Utilising rapid testing is not as contentious as requiring employees to have the COVID-19 vaccination, albeit there are still a number of legal issues which may be raised. Lateral flow testing involves swabbing from the nose and throat, which may also be uncomfortable.
If you are an employer who wants to test your employees for COVID-19 in the workplace, Acas recommends consulting with your employees, trade unions, and employee representatives first.
Employers should also consider issuing a testing policy. It is important to consider why employees might be worried about workplace testing and cover these elements in your policy. For example, they could be worried about testing positive and then being paid less for being off work, or being disciplined for increased absence. Additionally, you need to ensure you follow data protection laws if you decide to test your people for COVID-19 in the workplace, and communicate how you will process this special category data. Your policy should also address how you will deal with any refusals to take tests.
How can I support employees dealing with Long COVID?
For some people, COVID-19 can cause symptoms that last months after the infection. This phenomenon is often referred to as Long COVID. These symptoms may affect someone's ability to work or cause them to be away from work.
For those who are absent from work due to Long COVID, unless the employer puts special arrangements in place, the usual rules of sickness, absence, and pay will apply. For those Long COVID sufferers who return to work, employers may need to address performance issues if they cannot meet the required standards.
The role of occupational health is essential in assessing support and if any adjustments need to be made. Symptoms of Long COVID are reported to vary significantly and come and go. Therefore, it is likely that impacted employees will need some flexibility from their employers.
As with the impact of the pandemic on mental health more generally, those suffering from Long COVID are also likely to benefit from mental health support. It is also important to confirm whether impacted employees wish to share their condition with their colleagues. This could be helpful to explain any varied working arrangements.
At present we have limited information about Long COVID and the prognosis of those who suffer from it. However, employers should be conscious that it is possible that Long COVID could be considered a disability for the purposes of the Equality Act 2010. This would be subject to the usual tests to establish such disability, and in particular the impact of the condition on each sufferer and its duration. However, employers should seek advice from an employment lawyer to navigate their way through these issues.
A unique opportunity
Organisations and everyone in our society have lived through an extraordinary period in history. And it is now up to us to work out what lessons we want to take with us into the post-pandemic world. We have the unparalleled opportunity to create workplace cultures that work for both employees and businesses. And there has never been a more important time to ensure employees feel heard through how we act next.
We thank Clarion for sharing their knowledge and experience. If you would like to express interest in Clarion’s monthly employment law bulletin or their upcoming events programme please contact Deborah.
To learn more about our approach to recruiting during the pandemic, and to discuss your recruitment needs, get in touch with Marks Sattin.
