10 Top Tips To Update Your Employment Documentation In The Wake Of The Covid-19 Pandemic

1. Home-working policy

With homeworking becoming the “new normal” for many businesses it is advisable to put in place a home-working policy to ensure best practice and that you are legally compliant.

A typical policy will include:

• The types of circumstances where home-working arrangements will be entertained.
• Guidelines and procedures for how to request home-working.
• Circumstances where a request is likely to be refused wholly or in part.
• Points to consider including whether the person can work independently or manage their workload efficiently and identify and resolve pressures involved in working from home.
• Reporting and supervision arrangements. Provision for discussing the matter informally before making an application.
• Provisions in relation to equipment which may and may not be used.
• Data security and confidentiality and practical details about how this will be maintained both physically and in terms of supervision.
• Health and safety issues specific to working from home including arrangements for risk assessments.

In the light of the Covid-19 pandemic there will be a particular premium on reviewing some of the key areas of legal exposure including health and safety and data security and confidentiality.  Because of the rapid transition to home-working in March 2020, with the best will in the world, many employers did not have time to address their mind to this.  If risk assessments have not been done you will need to do these as well as consulting with employees or, where relevant, their representatives.

2. Flexible working policy

Closely related to the home-working issue is flexible working more generally.  The safety issues surrounding a lockdown and the return to work have thrown up the need to consider changes such as allowing employees to start work at staggered times to avoid rush hour exposure.

It is likely that there will be an increase in requests for home-working, as well as flexible working hours.  Employees who have previously been shy about coming forward may do so now.  Also, the benefits as well as drawbacks of flexibility have been highlighted during the lockdown period.

We may also see more challenges in the Employment Tribunal where flexible working requests are refused.  There is a statutory scheme in place which allows all employees with 26 weeks of service to make a request once in every 12 months.

Refusal can only be on one of 8 clearly prescribed reasons:

• The burden of additional cost.
• An inability to organise work among existing staff.
• An inability to recruit additional staff.
• A detrimental impact on quality.
• A detrimental impact on performance.
• A detrimental effect on ability to meet customer demand.
• Insufficient work for the periods the employee proposes to work.

An employee may enforce the right in an Employment Tribunal if the request is dealt with unreasonably, there are unreasonable delays in giving the decision, the reason given is outside the 8 prescribed reasons, incorrect facts have been used or it is wrongly treated as withdrawn.

Potentially more costly for an employer is if a female employee makes an indirect sex discrimination claim arising from the refusal.  This might also be combined with a constructive dismissal claim.  There is a defence of justification to an indirect discrimination claim but it will be scrutinised carefully by an Employment Tribunal. The justification must be a proportionate means of achieving a legitimate end. In a recent case an employer was unable to successfully defend a claim on the basis that it assumed that there would be difficulties in home-working because the individual had small children.

Employers are going to have to give careful consideration to the reasons they cite when refusing flexible working now, especially if the business has managed to work as usual in the pandemic with everyone working from home. In this regard, keep a note of areas where things have not worked.

If an employee has a disability which puts them at a disadvantage which could be alleviated by flexible working, there would also be the basis of a claim if a reasonable adjustment were refused.

The contents of a flexible-working policy should include:

• A general statement of principle regarding support for work/life balance and a sympathetic approach by managers unless the request cannot be facilitated for business or operational reasons.
• The various types of flexible working arrangements including reduction or variation of hours, home-working or job share.
• Who is eligible to make a formal right to request (bearing in mind the statutory requirement)?
• Procedure for making a request and for it being dealt with including a meeting, a written decision and appeal.
• The possibility of an informal request.

3. Health & Safety

 All employers should have regard to three aspects of health and safety in the workplace:

• A health and safety policy.
• A risk assessment.
• Consultation with employees and/or representatives.

In the light of the pandemic, risk assessments in relation to the workplace will need to be revised in taking all the risk of the spread of Covid-19 and possible further outbreaks.  You should also be considering revision of documents to allow for potential new outbreaks and future pandemics.

It is likely that home-working will be an increasing part of the picture and it is important that health and safety policies incorporate a proper assessment in relation to this.

A significant area which is often neglected by employers is that of the mental health of employees.  There has been an increase in stress for managers and employees arising from Covid-19. This has arisen due to various reasons, such as illness, caring responsibilities for elderly relatives, home-schooling, financial incomes and stress arising from the illness affecting their loved ones.

On 12 May 2020 the Health & Safety Executive produced a toolkit to assess employers to manage and assess risks at work arising from Covid-19 and more generally.

In addition they have introduced a risk assessment template.

The risk assessment template contains questions such as:

• What are the hazards?
• Who might be harmed and how?
• What are you already doing to control the risks?
• What further action do you need to take to control the risks?
• Who needs to carry out the action?
• When is the action needed by?

4. Sickness and disability

One issue thrown up by Covid-19 is the payment of statutory sick pay during the epidemic.  If somebody self-isolates following a direction from a medical professional or Government guidance they will now be entitled to statutory sick pay if they comply with the other criteria.  Whether they also have an entitlement to company sick pay will depend on your policies.  This is an area that should be clarified for dealing with current and future outbreaks of infection.

The same applies in relation to shielding.

It is important to review your equal opportunity policy to ensure that it includes provisions in relation to reasonable adjustments.  A disabled employee may well be put at a substantial disadvantage as a result of changes to the physical environment or working arrangements.  It is particularly important that managers are aware that this will be a consideration when an issue arises in the workplace, whether it is in relation to flexible working or vulnerability to infection while the pandemic is still present.

5. Disciplinary and grievance policy

 A point which has arisen over the past few months is whether it is appropriate to conduct grievance and disciplinary meetings over the telephone or with the help of Zoom or other video meeting technology.

It seems likely that with more people working remotely it will make sense for meetings to take place using technology on a regular basis.

However, it is important that proper safeguards are in place so that a procedure does not become flawed as a result of this.  There is no reason why an employee should not have a representative who is not physically present as long as they are involved in the meeting whether in person or using technology.

The possibility of breaking off to confer with a representative should be considered. You should consider whether the platform you are using has a facility for confidential break out rooms for both sides to confer. In many cases it may be advisable to reserve a decision and send it in writing at a later stage.

Further, arrangements should be in place for sharing and distribution of relevant documents.  It may be that the remote conduct of hearings means that more time has to be built into the process to ensure that all parties have the documents available in front of them and in a format so that they can easily be referred to. Employees may not have fast printing, copying or scanning facilities and it may be necessary to post hard copies.

In principle all the considerations in relation to disciplinary processes include that they should be conducted in a reasonable manner and the decision should be made after proper investigation.  A temptation to short-cuts arising from the limitations of on-line meetings should be avoided.

6. Revisions to your policies regarding holidays

 Two types of issues have arisen during the pandemic in relation to employees accumulating holiday.

Firstly, emergency legislation was brought in to amend regulation 13 of the Working Time Regulations 1998 to relax the restriction and carry over of leave derived from the Working Time Directive.  This emergency legislation allows for 4 weeks of leave to be carried over.  This carry over has to be taken within 2 years after the end of the holiday year concerned.

The right only arises where it has not been reasonably practicable for individuals to take their leave as a result of Covid-19.  It should not be taken as a general right to roll over, but does give flexibility to those who, due to the nature of their job have not been able to take leave..

Secondly, many employers will have been inundated with requests to cancel leave in past months.  Therefore, just as pressing is the problem of how to get the employees to take their leave especially whilst there is less activity in a company.  It should be noted that in the Working Time Regulations 1998 regulation 15 that there are provisions allowing the employer to specify when leave can be taken.  A minimum period of notice of twice the length of leave to be taken must be given.

Please note that it is not a requirement for employers to agree to the cancellation of a leave request if this is not in their policy.  Employees can also take annual leave while on furlough so it is reasonable to require them to do this. Employers do not want holiday building up and therefore, should communicate what they want to do and why as early as possible.

It is therefore recommended that you revise your annual leave policies in relation to carry over and the requirement to take leave at times designated times.

7. Time off for Dependants

Another right which will have been exercised more frequently during the pandemic is the right for employees to take reasonable time off to care for dependants, albeit unpaid. The right extends to care for a spouse, civil partner, child or parent.

Managers need to be aware that employees must not be subjected to a detriment for exercising this right.

This legislation provides that an employee is entitled to take reasonable time off where it is necessary:

• To provide assistance if a dependant falls ill, gives birth, is injured or assaulted.
• To make care arrangements for the provision of care for a dependant who is ill or injured.
• In consequence of the death of a dependant.
• To deal with the unexpected disruption, termination or breakdown of arrangements for the care of a dependant.
• To deal with an unexpected incident which involves the employee’s child during school (or another educational establishment’s) hours.

If your leave policies do not cover this right, it is advisable to update them. This type of leave is generally for unplanned emergencies but Covid-19 has seen employees seek to use this on a much longer basis, for example to provide childcare when school is closed.

8. Whistleblowing policy/Detriment in Health and Safety Cases

The Covid-19 pandemic has thrown up the importance of the whistleblowing provisions in the Employment Rights Act 1996.

Where an employee makes a protected disclosure within the meaning of the Employment Rights Act they have a right not to suffer detriment.

A protected disclosure arises where, in the public interest, an employee discloses facts which tend to show various matters including:

• That a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject.
• That the health and safety of any individual has been, is being or likely to be endangered.

Clearly, the health and safety provision has been highlighted by the pandemic. There are a number of other circumstances such as potential damage to the environment or criminal offences but these are the key ones relevant to Covid-19.

Another big issue is likely to arise from employees who blow the whistle in relation to abuses of the Government’s furlough scheme. Great care should be taken in how any complaints of this nature are handled. It is anticipated that there will be plenty of litigation in this area!

There is a further provision where an employee is protected in the following case:

• In circumstances of danger which they reasonably believe to be serious and imminent and that employee refuses to work or work in a particular part of the place of work.

It is important that you have a whistleblowing policy in place which covers the following:

• Those who are responsible for the policy.
• An explanation of what whistleblowing is, that is to say the types of suspected wrongdoing or dangers to be covered.
• A procedure for raising a whistleblowing concern. It should be noted that for a whistle-blower to be protected in law the disclosure should be to an appropriate person.  It is recommended to have a nominated person within the organisation to whom complaints can be raised.
• Confidentiality in relation to complaints must be covered.
• A procedure for investigation and delivering outcome.
• An appeal or review in the event that the individual is not satisfied.
• The circumstances in which an external disclosure (e.g. to a regulator) may be appropriate and acceptable.
• A clear statement that whistleblowers will not suffer any detriment and that they will be supported through the process.

It should be remembered that an employee who is subjected to a detriment or dismissal is protected from day 1: there is no qualifying period for a claim of unfair dismissal because of a protected disclosure. Where they are subjected to a detriment, there is a possibility for injury to feelings.  The level of compensation for an unfair dismissal resulting from whistleblowing is unlimited.

9. Collective Consultation

A very important area on non-compliance by employers since lockdown started has been a failure to consult representatives when making large-scale redundancies.  It should be noted that collective consultation obligations could also apply where there is the potential to dismiss if employees do not accept a variation of contract.

The obligation to consult with representatives kicks in if it is intended to dismiss 20 or more people for a reason unconnected to the individuals.  This is quite a broad definition and does take into account not only redundancy in the classic sense but also things such as significant contractual changes.

One of the practical difficulties is that before the minimum period allowed for consultation kicks in (30 days if there are 20 – 99 dismissals proposed or 45 days if there are 100 or more) it is necessary to ensure that representatives are in place.

One possibility is for an employer to have in place a representative body of employees for information and consultation.  Their duties could also include being a representative in the event that collective consultation is needed.

Introducing employee representatives on an ongoing basis will prepare an employer for uncertain times ahead.

10. Last but not Least: Amendments to Contracts of Employment

 A number of areas of your contract of employment should be seriously considered as a result of the Covid-19 pandemic.

Overall it is likely that employers will want to ensure that the contracts of employment give them maximum flexibility in the event of a crisis or significantly changed circumstance.

Reviews to the following provisions are recommended:

• Lay off and short-time working: these clauses became unfashionable in recent years but the possibility of being able to do this without a breach of contract as an alternative to redundancy in a crisis situation is highly attractive.
• Clauses to allow for requiring employees to work from home as opposed to working in the office.
• Provisions for allowing variation in working hours in terms of flexibility and reduced pay on a pro-rata basis.

Please remember that in April 2020 new requirements were introduced to the statutory obligation to provide a Principal Statement of Terms of Employment. This statement must now be provided from day one of employment and must also provide an increased range of information. It must be provided to workers as well as employees.

A thorough review of your contracts and policies may be in order!

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