Employment practices in a post-pandemic world
The following article appeared in ABTA's issue of Travel Law Today - Autumn 2021.
Ingrid Hesselbo, Associate – Fladgate LLP
The move to remote working has dramatically affected business operations in a way that did not seem possible only a year and a half ago; how companies formalise this set-up to make sure it works in the long term is a key issue for many as they seek to recover to pre-pandemic activity levels.
Similarly, vaccines are here to stay with annual boosters seeming inevitable. How employers manage the vaccination status of their workforce is likely to continue to be significant.
For employees who have been working from home during the last 18 months, the pandemic has demonstrated that hybrid or remote working can be efficient and productive. Some employers have capitalised on a reduced need for office space by limiting the amount spent on leases. However, not all roles can move to a hybrid or remote working system, and many jobs require a face-to-face presence. Determining the best working practice for each role and implementing that fairly and consistently continues to be an important issue for businesses.
All employees with at least 26 weeks’ service can now make a statutory request for flexible working if they wish to formalise a change to their working arrangements (for example, working from home or changing the hours they work). It is expected that employers will see an increase in these statutory requests over the next year or so as many employees seek to extend the work-life balance benefits discovered during lockdowns.
At the same time, there is an ongoing Government consultation on changing the system. This could allow employees to make multiple requests in a year and to do so from the first day of employment.
Once employers receive flexible working requests it is best practice to treat the request as a chance to communicate openly with the employee. If the employee requests something that doesn’t quite work, then the employer should try to find an arrangement that does work for everyone, rather than simply rejecting the request outright. If the employee genuinely needs the flexibility, having a strict approach may lead to dissatisfaction, higher staff turnover and, ultimately, a claim.
Refusals to accept flexible working requests without providing proper justification are more likely to be scrutinised now, leading to formal employee grievances and lost management time. That said, failure to follow the statutory process is currently not often used as the basis of an employment tribunal claim. Instead, indirect sex discrimination is used as the vehicle to bring a claim where there has been a refusal to accept a flexible working request. While many fathers have enjoyed the ability that hybrid and flexible working has offered them to be more involved in family life, it is still accepted by the tribunal that mothers have a greater childcare burden. A blanket policy against flexible working that cannot be properly justified is at risk of discriminating against working mothers.
The best way forward is to adopt a proactive approach. Discuss the return to the office and the business needs with employees, but be prepared to be flexible where necessary. Beware of deferring responsibility to line managers: some line managers may have differing views and approaches to flexible working. An inconsistent approach across different teams that does not have proper justification can increase the risk to the business. If individual line managers do have total discretion, it may be sensible to organise a training session to set out guidelines.
With the roll-out of booster vaccinations for the over 50s, it is clear that vaccination as a tool to manage COVID-19 is here to stay. The approach employers take in terms of vaccines and their staff will continue to be an issue. In addition to mandatory vaccination for care home staff, there has now been confirmation NHS workers in England must get the vaccine by April 2022.
There are also increasing moves from some companies within the travel industry to require all customer-facing roles to be filled by those who are fully vaccinated. It remains to be seen how this will play out in the long term, especially as it is expected that an ongoing vaccination programme will be required and it seems inevitable that, over time, the take-up of booster vaccinations will decline.
In the UK, can employers have a compulsory requirement for staff to be vaccinated? If companies do adopt this approach, what are the risks?
First, employers have an obligation on the one hand to ensure that they provide a safe workplace for staff. But it does seem likely that requiring all employees to have the vaccine is going to be considered, on its own, an unreasonable approach in trying to achieve that aim, unless there are very specific circumstances.
Having a compulsory vaccine policy may disadvantage specific groups of employees, and could invite claims for unfair dismissal. Employees that might pursue such claims can be broadly split into two groups. First, those who as a result of certain medical conditions are not able to have the vaccine, this includes those who have a history of severe allergies to the ingredients in the vaccines. It may be that these individuals should also be considered disabled.
Second are employees with sincerely held beliefs, who could reject the offer of the vaccine on this basis. Any protection they have against detriment or dismissal based on their religion or belief must be weighed against the employer’s legitimate interests (in this case to provide a safe workplace for all staff).
It may be more sensible to adopt a carrot rather than a stick approach to getting staff vaccinated. Steps that employers may consider are, for example, offering reasonable time off for staff to make their vaccine appointments, and making efforts to inform employees about the benefits of vaccines to try to encourage take-up.