29 June 2021
As UK businesses follow the coronavirus roadmap, we have summarised some key people issues for recruitment businesses to consider.
Returning to the office
Like all employers, recruiters need to consider how they return to the office if they have had most of their workforce working from home for the last year.
What preparations should be considered when bringing staff back? We are seeing several approaches, such as operating a rota system, with desk booking becoming mandatory for staff, or mandating two days in the office and three days at home to keep occupancy levels lower. Furthermore, should workers with commutes involving busy public transport links or special caring responsibilities be allowed different arrangements? These are all issues employers need to consider. Many of our clients have started to use an HR checklist to ensure they are returning to the workplace safely.
Whether or not employers intend to retain some form of flexible working, it is important to be aware that all employees with at least 26 weeks of continuous service have the right to request to work flexibly. This means they can request a change to their hours or place of work. Employers will need to deal with any such requests reasonably and in accordance with the legislation. Any refusal may be challenging to justify legally where staff have been successfully working from home for the past 15 months. However, there will be some roles that cannot be performed remotely to the expected standard. Employers must also make changes to terms and conditions of employment for any new working arrangements agreed.
When considering hybrid working arrangements, employers should be aware of discrimination risks for disadvantaged groups. Women are still more likely to take responsibility for childcare and so may be more inclined to take the option to work from home. Similarly, disabled employees who find it difficult to travel to the workplace may do the same.
Employers considering hybrid working models will need to implement measures to avoid those who are less visible in the workplace from being disadvantaged, for example, being overlooked for promotion. Employers will also need to ensure they are complying with their requirements to make reasonable adjustments in the workplace for any disabled employees working from home.
Workers who refuse to go to work because of health and safety fears will also now be protected from detrimental treatment from their employers. Previously, only employees benefitted from this protection. For the first time, this amendment to the Employment Rights Act 1996 will allow workers (alongside employees) to leave, refuse to work, or take steps to protect themselves and others where they feel health and safety danger is 'serious and imminent' and that belief is considered reasonable. This means employers will need to ensure any requirement for employees or workers to return to the workplace is reasonable and adequate safeguards are put in place to reduce the risk of infection.
We have now seen the first coronavirus Employment Tribunal case in this area, and it is likely that similar claims will follow as employees and workers return to work over the coming months.
In the case of Rodgers v Leeds Laser Cutting Ltd, Mr Rodgers was concerned about the safety of his vulnerable children and refused to return to his workplace on 29 March 2020. He was subsequently dismissed and brought an unfair dismissal claim which he lost. A key factor in the employer’s successful defence of the claim was the coronavirus-secure measures it had implemented.
Vaccination and testing
The vaccination roll-out has been a great success so far in the UK and many companies now want to understand and record how many of their employees have been vaccinated as they prepare to bring staff back to their offices.
Some employers have also asked us if they can mandate their workforce to be vaccinated.
There is currently no legal requirement to be vaccinated in the UK. A blanket mandatory vaccination policy carries discrimination and health and safety risks from those employers or workers who have a good reason for not wanting to be vaccinated. However, in some settings, such as care homes from the NHS, it could be justified or even legislated for, according to recent reports.
There is nothing to prevent employers reasonably encouraging their staff to be vaccinated though. For example, employers could consider allowing staff paid time off to attend their vaccinations if they fall on a workday, or where they are off sick with vaccine-related side effects.
Employers will also need to exercise greater caution when processing data relating to their workers’ vaccination status. This will amount to special category personal data and must only be processed in accordance with data protection legislation.
We are also seeing companies suggesting and implementing their own testing regimes to aid the return to the workplace, with regular lateral flow testing, similar to that used in schools across the country.
Right to work checks
Finally, the right to work checks, temporarily adjusted for the pandemic, are set to return from the 31st August 2021, including penalties for non-compliance. Until 30th August 2021, employers can verify right to work over video calls with job applicants and existing workers. They will also be able to continue to accept scanned documents or a photo of their documents via email or a mobile app, rather than seeing the original. However, from 31st August 2021, the normal verification checks will restart, and the original documents will be required once again.
If you need help with any of these areas, please contact Kerri Constable or Jennifer Mansoor for support.