Working in a post-pandemic world

Answer

For better or worse, no one can deny that the covid-19 pandemic changed our lives in more ways than we could have ever envisaged. Companies – from the newest start-ups to multinational corporations – are no exception.

At the peak of the pandemic in April 2020, 47% of employed people, accounting for around 16 million workers, did at least some work at home. While we may now be over the worst of the virus, some policies and practices affecting the way in which people work have lingered and may continue to linger well into the foreseeable future, if not indefinitely. Now that the Coronavirus Job Retention Scheme and the Statutory Sick Pay rebate have ended, UK companies are faced with bearing full responsibility for, and importantly the costs of, their employees. This is an increasingly daunting task in light of recent political moves such as the global introduction of a 15% minimum corporation tax and flexible working proposals.

Outside of government intervention, companies must now decide what their future employment policies will look like. Operating models, for example, may take the form of permanent homeworking, a full return to the office or a flexible hybrid working system – each option has its own potential issues. Moreover, there is the question of whether the popularity of vaccination mandates particularly in US companies may eventually reach our shores in spite of significant differences in the two employment law regimes. It is also difficult to ignore the number of employment disputes over the last two years in connection with covid-19, as employees reassess and challenge their own employment relationships.

To commute or not to commute?

The pandemic has changed the way we think about work; it has shown that remote working, and more flexible arrangements outside of the default ‘9-5’, are more feasible and beneficial to companies than previously thought. A general trend in favour of increasing flexibility in working habits has therefore emerged either as a direct result of, or has been accelerated by, the measures and guidance imposed on companies in respect of their employees because of covid-19.

‘Flexible working’ is an umbrella term covering working patterns differing from a normal or existing pattern to suit an employee’s needs and commitments outside of work. This may include arrangements such as job sharing, flexi-time, part-time work, remote or homeworking and staggered hours.

On 23 September 2021, the government launched a consultation on proposals to reform the Flexible Working Regulations 2014, SI 2014/1938. The principal proposal is to make the right to request flexible working a ‘day one’ right for employees, thereby removing the 26-week minimum continuous employment requirement. Crucially, the right still does not confer on employees’ entitlement to have their requests granted; employers may refuse such requests if there is a valid business reason. Short of such an obligation to grant employees’ their flexible working requests, the employers’ position has also been addressed. Among other proposals, the government considers:

• whether the eight business reasons for refusing requests are still legitimate;
• an obligation on employers to provide requesting employees with alterative arrangement; and
• temporary arrangement requests.

Recent Employment Tribunal (ET) decisions have also reinforced the need for employers to take flexible working requests seriously and dedicate sufficient time and resources to the assessment of such requests. In Thompson v Scancrown Ltd., the ET ruled in favour of a mother whose request for an earlier leaving time and a four-day workweek for childcare reasons was refused, placing the claimant at a ‘disadvantage’ amounting to indirect sex discrimination. The ET likewise determined in Follows v Nationwide BS that the refusal to allow a senior manager’s request to work from home to care for her disabled mother was indirect sex discrimination. 

In addition, on 23 September, in response to a consultation originally launched in March 2020, the government published its intention to give unpaid carers of relatives or household members with long-term care needs a right to take five additional days’ leave to meet such personal commitments. This right is to be protected as a new ‘automatically unfair’ reason for dismissal. It is thought that such reform will widen market participation by making it more accessible, particularly for women, and address the consequences of an aging population.

Although no clear timescale has been set to enact relevant legislation, the above reform indicates that, while some of the more extreme short-term practical responses to the pandemic are not sustainable in the long-term, there remain many possibilities for permanently updating company flexible working policies. In fact, it is possible that current practice has already overtaken such proposals, with many companies already adapting earlier short-term solutions, in response to covid-19 mandates and guidance, to create a long-term or even permanent operational model.

Focusing on the employers’ perspective, the major benefits of a policy for homeworking or ‘hybrid’ arrangements – combining working hours or days spent in the normal place of work or office with time spent working from home or elsewhere – for companies are threefold: reduced operational costs; increased productivity; and a greater access to, and retention of, a wider talent pool.

The perceived risks, however, are that:

• companies may lose control over their dispersed workforce;
• dissatisfied employees, including those opposed to remote working, may claim for constructive dismissal on the basis of a contractual breach of the implied term of mutual trust and confidence, discrimination, or unlawful detriment; and
• there is greater potential for confidentiality and data protection breaches.

‘Be jabbed, or be gone’: can a fully vaccinated status become mandatory for UK employees?

At the beginning of October, multinational tech company, IBM, announced that it will require all US employees to be fully vaccinated against covid-19 by 8 December 2021 or face unpaid suspension, subject to limited medical and religious exemptions. IBM has followed a number of US companies in the banking and tech industries, including Facebook, Google and Morgan Stanley, adopting mandatory vaccination policies. United Airlines has gone one step further to threaten to fire all unvaccinated staff, which currently accounts for nearly 600 employees or 1% of this US workforce.

In the UK, current commercial practice in relation to covid-19 vaccination strategies is less extreme. For certain industries, however, this is set to change. On 11 November, the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021, SI 2021/891 will come into force, making it mandatory for a person working in registered care homes to have a covid-19 vaccine unless they are exempt.

Outside of this specific area, companies at most, and in line with ACAS guidance, seek to support and encourage employees to get vaccinated but not force them. Their caution is influenced by two main concerns:

• mass resignations; and
• potential unfair dismissal or discrimination claims.

It may be possible for companies to force employees to get vaccinated on health and safety grounds. Under the Health and Safety Information for Employee Regulations 1989, businesses owe their employees a work safety duty of care. Mandating vaccinations could be seen as complying with this duty. Those adopting such a strategy would, however, have to contend with protections against discrimination under the Equality Act 2010, the right to private life under Article 8 of the European Convention on Human Rights, and perhaps unwanted publicity. Even keeping tabs on who is vaccinated, and who is not, creates an administrative burden; a person’s vaccination status is classified as a special category of data under the General Data Protection Regulation, meaning that more stringent processing and security requirements apply.

In light of the current legislative climate, a lack of private vaccine supplies, and the downward trajectory of the pandemic, it is perhaps unlikely, but not impossible, that mandatory vaccinations will feature in UK company policies. Incentives such as bonuses for taking the vaccine may be a more popular route.

Breaking point: the potential risks of future covid-related disputes for companies

As has been mentioned, indirect discrimination claims concerning refused flexible working requests show that companies must take this area more seriously. Flexible working arrangements may not have become the norm or default position, but they are no longer a limited exception. This is one of the wider consequences of the pandemic.

Flexible working arrangements are not the only area where an employer’s exercise of discretion has come under scrutiny. The ET ordered an employer to honour a commission arrangement made with a furloughed employee, in which the employer had full discretion as to whether the employer would be paid the agreed commission. Nonetheless, such discretion must be exercised rationally and in good faith and, as a result, the employee was entitled to receive full commission, deferred because of the pandemic, because the employer already paid in part.

Another area of interest is the position on ‘long covid. The National Institution for Health and Care Excellence defines ‘long covid or ‘post-covid-19 syndrome’ as “signs and symptoms that develop during or after an infection consistent with covid-19, [which] continue for more than 12 weeks and are not explained by an alternative diagnosis.” The legal definition of ‘disability’ is a “physical or mental impairment”, which “has a substantial and long-term adverse effect on [one’s] ability to carry out normal day-to-day activities”. In June 2021, more than two million adults in England alone suffered from the effects of long covid, as defined, which include breathlessness, coughing, fatigue and cognitive impairment, all of which can limit a person’s ability to carry out normal activities. Consequently, it brings in to question whether long covid meets the threshold of ‘disability’, thereby becoming protected characteristic, and could therefore be a future question for employment tribunals. Until it is ruled out, this may be an area to watch for potential discrimination claims.

Final thoughts

Flexible working has moved to the forefront of key commercial considerations, no doubt thanks to covid-19, with companies in need of clear, up-to-date policies and procedures to address a new model of work. Claims heard in employment tribunals have likewise been at least indirectly influenced by the pandemic. Given that the UK labour market is currently witnessing record job vacancies, the next few years may be crucial in determining the full impact of this. Shortages in key sectors such as logistics and retail, the impact of legislative reform, and the greater push for more employee-friendly practices to avoid disputes, may push companies to provide modern, competitive and safe working conditions to attract, rather than lose, their workforce.

Alexandria Davis is a trainee solicitor at White & Case LLP.

“Any views expressed in this publication are strictly those of the authors and should not be attributed in any way to White & Case LLP.”