Selene, Greg and Angharad from our Employment Team recently joined Recroot as part of their regular HR Forum programme to discuss the topics high on the agenda of every HR professional and business owner, including:
- The recent Treasury direction on furlough
- Vaccines – How will employers handle vaccinations in the workplace?
- How has the pandemic shaped the future of Flexible Working Requests?
1. Furlough Update
Angharad highlighted that the recent 6th Treasury direction on the furlough scheme did not bring about any great changes, with it still set to end on 30th April. Following on from the Lockdown Roadmap announced on Monday, there continues to be pressure on the Government to extend this support to businesses. With it being predicted that the scheme has cost £46 billion so far, it will likely take the shape of reducing percentage contribution from the Government as it is phased out over the coming months. Currently, the scheme pays 80% of eligible employees wages up to £2,500/month but cannot be claimed for employees on notice.
As a note for employers – the way in which you calculate the reference pay for employees with variable pay will need to be based on their pay as at 19 March 2020 if they were furloughed in March 2020.
With the Government conducting a review into the potential use of a vaccine passports, many businesses are considering their options as to whether they can insist on staff being vaccinated as a condition of their employment. How would this work in practice? Selene outlined the scenarios for both new and existing staff but stated that it would be a risky approach for businesses to have a blanket no jab, no work policy.
No jab, no contract: New staff
The position for new staff is different than for existing staff, as an applicant cannot make a claim against your business unless they have grounds on which to pursue a claim of discrimination. For example, an individual could potentially bring a claim under discrimination legislation if their religious or philosophical belief prevents them from having the vaccine and that was the reason they weren’t given the job.
No jab, no job: Existing staff
With existing staff, an employer with a no jab no job policy would be looking to dismiss employees if they refused to have the vaccine. Employers would need to be able to justify this dismissal as being ‘fair’ so as to not give employees with over 2 years’ service grounds for unfair dismissal. They would also need to take care to avoid claims for discrimination, irrespective of the employee’s length of service, especially with the number of claims for discrimination from employees with less than 2 years’ service also increasing.
Overall, Selene encouraged the attendees of the HR Forum to take a reasonable approach to vaccinations, undertake a thorough risk assessment and to carefully consider whether it is legitimate and proportionate to insist upon staff being vaccinated, balancing the needs of their business with the rights of their employees. In many cases, further communication with the employees on the process and education as to the reasons why vaccinations protect the employees and the business may prove to be a sensible approach.
If an employer decided to take the “no jab, no job” approach, they would also need to take into account GDPR – how would you store information and proof of vaccination?
3. Flexible Working Requests
Throughout the pandemic the Government has largely encouraged working from home for many who can comfortably do so. With the roadmap for exiting lockdown now set out and a level of normality hopefully due to return later in the year, what does this mean for ‘flexible working’ and statutory flexible working requests?
The Good Work Plan recently encouraged employers to be more transparent about their flexible working policies and with the benefits of having an agile workforce (predominately focusing on the ability to attract and retain and support the best staff) being discussed for many years now, the pandemic has been a catalyst for change.
Greg highlighted that in his experience some employers over the years have been concerned that if they publicise their flexible working policy they may encourage the floodgates to open and that a high proportion of employees will look to make flexible working requests, resulting in a negative impact to the business.
With the return to office working on the horizon in late 2021 or early 2022, what does this mean for businesses? At the start of the pandemic, we saw many businesses forced to adopt remote and agile working practices. Many business reported a rise in productivity from home working and a reduction in overhead costs. Some even proclaiming it the ‘new normal’. However, in practice, we have now seen these businesses and their staff start to appreciate that after a prolonged period of remote working, a hybrid model can offer the right mix of productivity and cost savings whilst still allowing engagement for staff.
Lockdown is also taking its toll on employees’ health in terms of an increase in back and neck pain (only 40% employers are recorded to have completed a health and safety assessment over the pandemic), poor sleep and a rise in mental health issues, so there are many positives for getting the workforce back to the office. But how will this work in practice? For example, how can employers balance various employees’ competing interests whilst continuing to meet business demands? How can employers ensure managers are equipped to effectively deal with flexible working requests? How can employers ensure agile and sometimes ‘two tier’ teams (i.e. where some have flexibility and others don’t) are engaged whilst remaining high performing? What about the risk of constructive unfair dismissal and discrimination claims? With all this and more to consider, Greg suggested now is a good time for employers to start thinking about their approach to flexible.
With so much more detail to discuss, Greg will continue to discuss flexible working requests at the next HR Forum, which will take place on 18th March.
Selene Holden (email@example.com ~ 01284 717436)
Greg Jones (firstname.lastname@example.org ~ 01284 717446)
Angharad Ellis Owen (email@example.com ~ 01284 717453).
For more information on the services offered by Greene & Greene Solicitors please visit www.greene-greene.com and follow on Twitter @GreeneGreeneLaw.