Challenges faced by employers in a covid world

Posted on June 4, 2021

The workplace is gradually getting back to normal, the morning commute is certainly busier and with the current 'work from home' guidance due to be lifted many employers will be in the final stages of planning for a return to the workplace.

For some, like the Pearson Solicitors team, a new way of hybrid working has been introduced and if anything has come out of the pandemic it is that flexible working, wherever possible, is now welcomed by many employers – this can only be a good thing for a happy workforce moving forward.

However, it is not always possible to have such flexibility; there is no one size fits all manual in how to deal with this, for example in manufacturing, in factories and warehouses and of course in shops and supermarkets, staff cannot work from home and so as life gets back to ‘normal’ employers and employees have a lot of questions on new ways of working, COVID and vaccine implications, the traffic light holiday system, isolation rules and the impact on time off, as well as some key employment decisions to make.

“As always acting early and keeping your workforce up to date with the changes is crucial,” said head of Employment Law at Pearson Solicitors, Susan Mayall.

New ways of working

“Of course COVID friendly workplaces are now expected, if you have clients and customers visiting it is crucial to follow all the Government guidelines and to ease any staff worries employers should explain the risk mitigation measures they have put in place,” said Susan.

“The pandemic has changed many workplaces and if you have staff who are now mainly homebased or hybrid working then their terms and conditions may have to be changed - relating to place of work and any plans for time spent in the office at events or training. So as always it is crucial to look at your workplace policies and employment contracts to make sure you are up to date,” she advised.

It may also be appropriate to update or introduce homeworking guidelines to ensure health and safety, GDPR, IT security and employee wellbeing are taken into account.

The Vaccine and Employment Law

There is no government legislation to make the covid-19 vaccines compulsory and there are employment challenges here. As ever, early engagement with employees on these changes will be really important.

“There are some potential discrimination issues mainly on the grounds of disability, age, religion and perhaps some potential breaches by the employer of its duty of implied trust and confidence, which could result in claims for constructive unfair dismissal,” said Susan Mayall.

“If an employee is refusing to be vaccinated then any threatened dismissal or even disciplinary action could result in action relating to discrimination under the Human Rights Act 1998 and the European Convention on Human Rights, which respects privacy,” added Susan.

Employers need to consider carefully what action they are prepared to take if an employee’s role really does requires them to be vaccinated but they are refusing it, this may be the case in jobs that require travel or caring roles and all cases need to be considered on an individual basis.

Also, consider if you are prepared to give time off for the vaccine and consider the implications of sickness days that follow.

Holidays and traffic lights

As the furlough system comes to an end on 30th September 2021, over the past 15 months many staff will have accrued holidays and statutory leave can be carried over into the next 2 years leave – it is also worth remembering that Government guidance states that holidays can be taken during periods of furlough, with top ups from employers so this may be something to encourage.

The Government are currently advising against all but essential travel and the Government guidance is that you should not travel to amber and red countries. However, despite this guidance, we are seeing on the news reports of airports with queues of people travelling for holidays abroad. It is also to be noted that following return to the UK from holiday, periods of quarantine are a legal requirement after a visit to an amber or red country.

“There is no current guidance or case law on how employers should deal with this and so I thought that a recap on the law regarding taking holidays might be helpful to employers faced with staff who say are wanting to take a two week annual holiday to perhaps the Balearic Islands, but who then are legally required to quarantine and take tests on their return,” said Susan.

A worker must give notice if they wish to take statutory holidays and the notice to be given must be at least twice as many days in advance of the first day as the number of days, or part days, to which the notice relates, for example, if the worker wants to take 5 days leave, they must give at least 10 days calendar notice. In addition, there may be contractual requirements of notice in employees individual employment contracts.
An employer may refuse the worker’s holiday request by serving a counter notice. This must be given at least as many calendar days before the date on which the leave is due to start as the number of days which the employer is refusing so as an example, if the worker has requested 6 days leave and the employer wishes to refuse 5 days of the request, the employer must give notice of at least 5 calendar days before the date on which the leave was due to start.

A potential scenario of the above could be that a worker has requested two weeks holiday to go to Spain and yet is also aware that they will need to quarantine for 10 days on their return and they are not able to work from home. In such circumstances, an employer could refuse either the holiday in its entirety or the additional days of quarantine, meaning that these days would potentially be unauthorised absence and may therefore be subject to disciplinary action. In this way, the worker would still be able to take their two weeks annual leave, for example, in the UK, just not be able to quarantine.

Another alternative may be by agreement between the worker and the employee, especially in examples where a worker has been furloughed and has not been required to take its holidays during the furlough period, a two week holiday in the sun plus a further 10 days in quarantine would use up much of the holidays that have been accrued.

“We expect the scenarios as set out above will require consideration by employers on how they intend to deal in these circumstances and we expect these questions to keep being raised, particularly over the summer months,” added Susan Mayall.

For advice on any aspect of employment law, or if you want to discuss your options as an employer with regards to the coronavirus and your staff contact our employment law solicitors on 0161 785 3500 or email enquiries@pearsonlegal.co.uk

Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers Ltd or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.

This blog was posted some time ago and its contents may now be out of date. For the latest legal position relating to these issues, get in touch with the author - or make an enquiry now.