United Kingdom

Covid-19 response – Spring 2021 outlines four steps for easing restrictions in England. Step 1 starts on 8 March 2021 with schools reopening and the easing of restrictions on childcare where necessary to enable parents to work. Some sectors of the economy, including outdoor hospitality and indoor leisure facilities, will re-open in step 2 (not before 12 April 2021), with further sectors, including indoor entertainment/ attractions and large outdoor events, re-opening in step 3 (not before 17 May 2021). People should continue to work from home where they can during steps 1-3.

Free test kits for workplaces where staff cannot work from home will continue to be provided until the end of June 2021. Organisations need to register their interest for this before 31 March 2021.

The government expects that the clinically extremely vulnerable will no longer be advised to shield after 31 March 2021, but will confirm the position nearer the time.

In Scotland, the Covid-19: Strategic Framework update-February 2021 sets out a return to a tiered system from the last week in April. Scotland’s framework is staggered by three weeks, two weeks slower than in England. The five-level system should see the whole of Scotland exit Level 4 and drop down to Level 3, which would see a phased reopening of the economy – including non-essential retail, hospitality and services like gyms and hairdressers – from April 26. Until it is considered safe for workplaces to reopen, anyone who can work from home must do so.

Practical point

In England, ahead of Step 4 (not before 21 June 2021), the government will complete a review of measures to limit transmission of the virus (social distancing etc.) which will help inform decisions on the timing and circumstances under which these measures may be lifted, and on guidance on working from home. The review will also consider whether ‘vaccine passports’ could play a role in reducing risk and enabling a relaxation of the COVID-secure guidance in workplaces. In the Budget on 3 March 2021, the Chancellor confirmed that the Coronavirus Job Retention Scheme, which was due to end on 30 April, will be further extended to the end of September 2021.

If you have any questions or would like advice on any of the issues raised here, please get in touch with your usual Clyde & Co contact. Clyde & Co attorneys are available to assist you with these and other workplace issues. For more information, visit www.clydeco.com. 

For more information please contact Joseph Granato, Communications Manager at L&E Global at joseph.granato@leglobal.org.

Mr Kubilius, a delivery driver, worked at Kent Foods Ltd’s Basildon depot where most of the work involved travel to and from a site of their major client, Tate & Lyle.

Kent Foods’ handbook required its employees to show courteous treatment towards clients and that employees take all reasonable steps to safeguard their own health and safety and that of others while at work. Their drivers’ handbook required customer instruction regarding the PPE to be followed. Due to the pandemic, Tate & Lyle required face masks to be worn on site, and all visitors were given a face mask.

In May 2020, despite being asked repeatedly by a Tate & Lyle employee to do so, Mr Kubilius refused to wear a face mask while in the cab of his vehicle. He was told that without one, droplets from his mouth were likely to land on peoples’ faces due to the elevated position in his cab, and that Tate & Lyle’s rules required him to wear a face mask until he left their site. Mr Kubilius refused, and so Tate & Lyle reported the incident to Kent Foods and banned Mr Kubilius from its site.

Kent Foods tried to persuade Tate & Lyle to allow Mr Kubilius back on site, but they refused, and Kent Foods was not able to redeploy him. Following an investigation, Mr Kubilius was summarily dismissed and he brought an unfair dismissal claim.

The tribunal concluded that Kent Foods had acted reasonably in all the circumstances in treating Mr Kubilius’ misconduct as a sufficient reason for dismissal. That said, the tribunal noted that another, equally reasonable employer might have concluded that the incident merited a warning rather than summary dismissal – but the issue it had to decide was whether Kent Foods’ decision fell within the range of reasonable responses.

Practical point

This decision highlights how important it is for employers to have clear rules on health and safety and separately about the behaviour expected of employees in their relationships with clients, customers and suppliers. Unless an employee has a legitimate reason for not wearing a face mask, failure to wear one is likely to be a refusal to follow the employer’s reasonable instruction and therefore grounds for beginning a disciplinary process.

Kubilius_v_Kent_Foods Ltd

If you have any questions or would like advice on any of the issues raised here, please get in touch with your usual Clyde & Co contact. Clyde & Co attorneys are available to assist you with these and other workplace issues. For more information, visit www.clydeco.com. 

For more information please contact Joseph Granato, Communications Manager at L&E Global at joseph.granato@leglobal.org.

With the UK trapped in varying degrees of lockdown (via the tier system) for much of December, one might be forgiven for thinking that HR professionals up and down the land will be breathing a sigh of relief that they will not have to contend with the usual Christmas party related conduct issues. However, as many employers are turning to online festive celebrations to replace the traditional office Christmas party, employers should be aware that virtual celebrations pose just as many risks as the real life alternative, whether it be from online bullying, harassment or privacy issues.

With so many people working remotely during the pandemic, the boundaries between work and private life have become blurred, and with this comes the risk that the usual office etiquette is abandoned. Home working, and virtual parties, may increase the potential for bullying and harassment as people may let their guard down in more casual environments; there are no restrictions on how much alcohol employees may consume during, or even before, a virtual gathering; and in addition, perpetrators might feel more confident hiding behind their computer because virtual communications provide a degree of anonymity that can lead people to act in ways that they would not in person.

Indeed, it has been widely reported that during the pandemic there has been a significant increase in online harassment, including by work colleagues. Unfortunately, black women and non-binary people have been targeted in particular, with these groups experiencing the highest levels of victimisation.

Most (but, alas, not all) employees these days have a sense that discrimination in the office is unlawful. What is less appreciated is that the Equality Act 2010, which outlaws discrimination and harassment in England and Wales, also applies where individuals are acting in the course of their employment outside their workplace.

The trouble is that the Equality Act does not distinguish between acts done in the office at 9am on a Monday morning and events that take place out of hours at a Christmas party, whether that is in a pub or online. More onerous still is that an act of harassment does not have to be intended to fall foul of the Act if it relates to sex, race, disability, age, sexual orientation, religious belief, gender reassignment, pregnancy, marriage or civil partnership. The classic example is one person makes a joke – which they intend to be humorous rather than offensive – 3 people laugh, but a fourth is humiliated on the grounds of, say, national origin. That will constitute a breach of the Act. Clearly this can happen just as easily virtually as it can in person.

Inappropriate behaviour at an office party could lead to an individual being on the receiving end of a formal grievance and being dismissed for gross misconduct. They could also, along with their employer, potentially be a defendant in a tribunal claim and ordered to pay compensation.

Under the Equality Act employers will have a defence if they can show that they took all reasonable steps to prevent employees from committing discriminatory acts. Therefore, whilst trying not to dampen the festive spirit too much (particularly after the year that everyone has had), employers should therefore consider taking the following steps before they hold a virtual Christmas party:

• warn against inappropriate behaviour, including sporting offensive or risqué fancy dress costumes, and remind employees about the alcohol and drugs policy
• remind staff about the social media policy, and the consequences of posting pictures, or other inappropriate material, online that could infringe an individual’s privacy rights and bring the business into disrepute
• circulate clear written guidelines on equal opportunities and online harassment, and the disciplinary sanctions that could result from breaches of the rules
• ensure any complaints about the party are dealt with seriously and consistently, and in accordance with company procedures.

Employers must also ensure that their online party is secure, so that it is not susceptible to uninvited guests sharing offensive material.

Our anti-discrimination laws were not introduced to stop people having a good time, but to allow everyone to feel at ease at work and when socialising with colleagues, whether that is in person or online. Especially after such a difficult year, this festive season should be a time of goodwill for everyone.

If you have any questions or would like advice on any of the issues raised here, please get in touch with your usual Clyde & Co contact. Clyde & Co attorneys are available to assist you with these and other workplace issues. For more information, visit www.clydeco.com. 

For more information please contact Joseph Granato, Communications Manager at L&E Global at joseph.granato@leglobal.org.

National restrictions in England ended on 2 December 2020 with England moving into a new regional, tiered approach. But what does the latest legislation and guidance say about office working and what are the implications for employers?

Working from home is likely to be more viable for office based workers than many workers in other sectors such as leisure, construction, retail and hospitality. The question of whether office workers should work from home or the office from 2 December 2020 needs to be looked at in the light of the regulations introducing the new tiered system (the Regulations) and also the latest government guidance applying from 2 December 2020.

When determining a policy around working in the office, there are two key considerations for employers to take into account:

1. First, the new rules contained in the Regulations around restrictions on gatherings and how those rules apply to being in the office or holding a work related meeting outside the office, such as a restaurant; and
2. Secondly, the government guidance on working from home.

The restrictions in the regulations on gatherings

The new rules contained in the Regulations provide restrictions on the circumstances in which two or more people may gather together in the same place in order to socialise or undertake any other activity.  There is a long list of exceptions to this rule – one being a gathering which is “reasonably necessary for work purposes”.

The Regulations do not prevent people from going into the office and attending on their own (such as in a private room) but they will have an impact on what happens when they meet with others, whether that be in the office in a meeting room, a corridor, the bathroom or the work canteen, or in premises outside the office, such as a business meeting in a restaurant.

The practical effect of the new rules is that if it is reasonably necessary for employees to work together, or to meet with clients or suppliers for business purposes, then on the face of it the “gathering” would be allowed. Such a gathering could take place in the office or in another place such as a restaurant or pub.

A clear cut example of a permitted client meeting at the office might be where a meeting simply cannot take place remotely in circumstances where a client does not have an adequate broadband connection at home and where documents need to be viewed and discussed.

However, where people can successfully conduct a meeting from home and meet the work purpose of the meeting, or the work purpose of a meeting could be just as easily be met by people interacting remotely, then it is clear that it is not “reasonably necessary” for an individual to attend work or for a meeting to be held in person. Ultimately, if the reason for attending the office or meeting in person results from simply a “preference” then the test is unlikely to be met.  However if there is a “reason” for meeting or attending the office, that needs to be identified and if it can be sensibly concluded that that “reason” means it is necessary for that office attendance, or meeting, to take place, that will be in compliance with the guidance.

This does need to be considered carefully though, because any gathering for work purposes which is not “reasonably necessary”, will be a breach of the Regulations which is an offence and could result in a fine.

Government guidance on working from home

The latest government guidance on working from home is slightly inconsistent at the time of writing on 3 December 2020.  Before the November lockdown, working from home was recommended if the work could be done “effectively”, but employers had the discretion to decide, in consultation with their employees, if that was the case.

In the new local tier guidance which applies from 2 December the government guidance for all tiers says “[e]veryone who can work from home should do so.”  The word “effectively” appears to have been dropped. The government’s Winter Plan also uses this wording. However, other guidance on the gov.uk website (such as the guidance Working safely during coronavirus guidance for offices updated on 1 December and the guidance Working during coronavirus if you cannot work from home) still retain the word “effectively” in some places. It is currently unclear if this other guidance is yet to be to aligned with the new local tier guidance.

If the word “effectively” has indeed been dropped (and this will likely become clear in the coming days as  the government continues to update its guidance), this potentially means the government’s message around working from home has become stricter than it was before the November lockdown and people should not be going to the office simply because they work more productively in the office or prefer to work there, where they can do their work from home.

If, on the other hand, the government’s intention is to retain the word “effectively” as opposed to a stricter “can/cannot” test, then in the context of the guidance as it currently stands, employers have a greater discretion to decide, in consultation with their employees, whether the work can indeed be done effectively from home. Adding the word “effectively” arguably confers a more flexible approach to the decision on whether home working is workable  – and suggests that the employer and employee may take into account other reasons based on the longer term nature of the issues we are now dealing with, as to why work cannot be done “effectively” at home, or why it is necessary for someone to be in the office (at least on a reduced basis). We have written more about this approach in our earlier client alert.

In either case, whether the word “effectively” is retained or not, the government’s COVID-19 Winter Plan does recognise that there are specific reasons why attendance in the workplace may be needed, including mental health issues or concerns and/or a need to work on-site physically. This is helpful for employers and employees who wish to go to the workplace in order to work.

Whatever the case may be, employers and employees should make sure there is a specific reason why the employee needs to be in the office. Employers will want to consider the processes that they have in place around any attendance in the office, and ensure they are happy proper consideration has been given to this and records are retained as appropriate. This will also need to be reflected in the COVID-19 workplace risk assessment and actions should be taken to manage the risks of transmission in line with current government guidance.

Travel between tiers to attend work

The latest guidance says that where people cannot work from home, they should continue to travel to their workplace. Across all tiers the advice is to walk or cycle where possible, plan ahead and avoid busy times and routes when travelling.

People in tier 3 are required to avoid travelling outside their area including for overnight stays other than where necessary. Work is cited as one of a list of reasons why it might be necessary to travel outside their area. We do think there is potentially a higher test in relation to work attendance when travelling from a tier 3 area, or into a tier 3 area of whether that travel is “necessary”.  It is hard at this stage to translate this into practical terms – but we would suggest that employers follow their normal processes in relation to considering the attendance of a person in the office, who is travelling from a tier 3 area (or potentially in the future into a tier 3 area) – with an added “rigour” to ensure you can conclude that travel is “necessary”.

Stop Press: We understand the rules in relation to business travel are in the process of changing, and we will provide a further update on this shortly.

Business events

The Regulations also allow certain “permitted organised gatherings” to take place across all three tiers. This would allow business events to take place at certain venues, other than a private dwelling. Numbers of attendees are limited by government guidance rather than the regulations. Different rules apply depending on which tier the business event takes place. In tiers 1 and 2, public attendance at business events can resume inside and outside, subject to social contact rules and limited to whichever is the lower: 50% capacity, or either 4000 people outdoors (or 2000 for tier 2) and 1000 people indoors. In tier 3 there should be no public attendance at large business events.

Health and safety

The government has updated its Working safely during coronavirus (COVID-19) (COVID-19) guidance which applies in a number of workplace settings in England (COVID-19 secure guidelines). It continues to be the case that all businesses and venues that are open are expected to follow COVID-19 secure guidelines to protect customers, visitors and workers.

Most of the sector guidance, including the advice for offices and contact centres now includes a “priority action” for employers to “consider the mental health and wellbeing aspects of COVID-19 for yourself and others.” The requirement to increase ventilation by keeping doors and windows open where possible and running ventilation systems at all times has also been updated for winter for most sectors, including offices and contact centres.

Conclusion

The new guidance is likely to be in place for the entire winter period and so many office workers who have been working from home to date, are likely to be doing so for some time to come. Employers will need to consider requests for employees to work in the office carefully and make sure there are specific reasons why it is necessary for them to do so. For many employers, this will mean revisiting and adapting their working arrangements again.

If you have any questions or would like advice on any of the issues raised here, please get in touch with your usual Clyde & Co contact. Clyde & Co attorneys are available to assist you with these and other workplace issues. For more information, visit www.clydeco.com. 

For more information please contact Joseph Granato, Communications Manager at L&E Global at joseph.granato@leglobal.org.

During the coronavirus crisis to date, women in the UK are more likely to have lost work, seen a decrease in their earnings and been working while looking after children. We consider what employers can do to manage this disadvantage and enhance diversity with their organisation.

The disproportionate impact of coronavirus on women in the workplace

Data collated by Universities of Oxford, Cambridge and Zurich shows that women are more likely than men to have lost work and experienced a fall in their earnings since mid-March 2020. The data, taken from almost 15,000 people across the UK, Germany and the US, found that many women without university degrees are more likely to be working in roles where they are unable to work from home, making them more vulnerable to losing their employment.

Similarly, a study by the Institute of Fiscal Studies which surveyed the experiences of 3,500 families with two opposite-gender parents found that in lockdown, mothers have been impacted much more than fathers. They are more likely by 47% to have lost their jobs, and more likely to have had their hours cut and been furloughed. Almost half of mothers’ hours spent doing paid work are split between that and other activities such as childcare, compared with under one-third of fathers’ paid working hours. Women are only doing on average 33% of the uninterrupted paid work of fathers. Before lockdown, this was 60%, already a disadvantage made more acute by this crisis. The impact on the performance of women in their work during this time is significant, with knock on effects on pay, promotion and prospects for the future.

In addition, the UK government has exempted companies from having to file gender pay gap data this year, with only half of companies choosing to do so. The UK Office for National Statistics (ONS) found in 2019 that there was a 17.3% pay gap between men and women in the United Kingdom when considering part and full-time employees together.

On 9 June 2020, the Government announced an exemption to the furlough closing date for some parents returning from parental leave. Over the summer, the House of Commons Petitions Committee issued a report on the impact of COVID-19 on maternity and parental leave, requesting greater support, including an extension of paid leave, which was dismissed by the government in early September.

Why does it matter?

Whilst the current crisis has led many businesses to re-evaluate their chief concerns (such as shifting focus to technology and health and safety matters), employers should of course retain a focus on diversity, and issues which impact on certain groups of their employees more than others. And there is evidence, in relation to sex diversity, that there are rewards for those that continue to attract and keep women in their business. A report Women Count 2020, by the Pipeline, found that FTSE 350 companies with more than 33% female membership on their executive committees have a net profit margin over 10 times greater than those with no women at this level.

Many organisations were already focused on gender diversity issues, and any gender pay gap, before this crisis hit, and in light of the statistics set out above, it is likely that some may well see a gender pay gap increasing. Gender pay gaps are often associated with a lack of women in senior positions; and if the impact of this crisis feeds through to an impact on women moving into senior positions, that will harm any efforts to reduce gender pay gaps through progression.

How can employers mitigate the disadvantage?

In light of the potential impacts identified above, there are steps that employers can consider taking to understand any disproportionate impact coronavirus is having on women in their own workplace, and therefore to assist in tackling any gender inequality which may result.

Gender diversity initiatives

Many employers had a suite of diversity and inclusion initiatives already in play with a view to reducing their gender pay gap. Those initiatives remain as important now as they were before; but we would recommend a review to establish if they remain the right initiatives to deal with any issues employers have identified, and to assist with any issues created by the lockdown. Whilst understandably focus has been on crisis management during the early stages of the pandemic, gender diversity and inclusion remain a key issue for businesses, and continued focus remains important to combat any issues caused or heightened by the pandemic.

Flexible working

In many industries where there is office based work, this period has seen a huge shift in employers’ understanding of how flexible and home working can work in practice for office based workers. Although very few will be considering a fully home working culture on a permanent basis for office based work, anecdotal evidence suggests many will be considering a new mixture of office and home based work, with a culture of full time office work perhaps becoming no longer the “norm”. Many will be devising plans to return to a “new normal” in the short and medium term. Some industry leaders, including the CEO of the Chartered Management Institute, are sounding alarm bells about pushing employees back to work too early, and flagging potential risks around this disproportionately impacting women who are statistically more likely to be suffering from childcare difficulties as the pandemic continues.

Creating or maintaining flexible working policies which reflect the new reality we live in, and what businesses have learnt from their abilities to cater for flexible working practices (on either a short term or longer term basis) will be important in attracting and retaining employees during and after the pandemic is over; and again based on childcare responsibilities this would be particularly important for female employees. This requires flexibility by employers in handling those with caring responsibilities and considering what their business can accommodate. The government has recently announced fines for employers who seek to prevent their employees from self-isolating. With long delays in testing and children likely to pick up cold and flu following their return to school, the prospect of employers dealing with absences from parents waiting for tests for their children is increasing daily. With caring responsibility still falling predominantly on women, this is likely to cause a gender imbalance to continue through the winter.

Employers may want to consider a review of flexible working policies in light of the above issues. Such consideration may include:

• The extent to which employees are “encouraging” employees to return to offices and the point at which return becomes compulsory; and how personal circumstances of employees, as against the needs of the business, are taken into account. This will have to be closely linked to government guidance in the coming months as the pandemic situation develops
• The design of office space, the development of technology and whether the culture supports diverse needs
• How formal flexible working requests are handled during and after this transition phase. Employers can expect a higher volume of requests as well as requests involving more time at home than would have been typical before the pandemic

The benefit of these considerations is the prospect of using the “new normal” to further support and potentially enhance an inclusive culture for all employees, in a way that supports the business’ needs and also supports those with childcare responsibilities, and seeks to support women with issues that they may be facing.

Maintain fair redundancy processes

There are likely to be circumstances in which many organisations need to consider employees for redundancy. Employers will want to consider how it may be appropriate to amend any criteria to take into account any recent issues that employees may have faced in their own particular circumstances. A criterion of “attendance”, for example may disproportionately impact those with childcare responsibilities, which would (based on the statistics) disadvantage women more. A business would want to consider if it should amend such a criterion in the circumstances.

The Government promised in July 2019 that it would expand the period of redundancy protection from the point an employee notifies her employer of her pregnancy until six months after the end of maternity leave. New legislation has been expected in the form of a draft Employment Bill but this has presumably been delayed due to the coronavirus crisis. In the meantime, the Pregnancy and Maternity (Redundancy Protection) Bill, a private member’s bill aims to achieve the same result. The second reading of the bill is scheduled to take place on Friday 16 October 2020 and we shall report on its progress.

Managing physical and mental health, including in relation to domestic abuse

Managing the health and safety of employees, as we considered in our previous articles in relation to those working from home as well as individuals who are returning to work, remains a key factor in supporting individuals in the workplace. The pandemic has encouraged employers to expand their role in monitoring and improving employees’ wellbeing, ranging from adjusting operating hours, offering hardship relief funds to employees in need, and enhancing sick leave. This has been a challenging time for managers and HR who have been under pressure in their own lives while trying to help colleagues in distress. Training for managers and HR on identifying mental health red flags in a remote environment, as well as maintaining their own mental wellbeing, is an area to consider for employers.

Gender pay gap

Businesses are not required to submit gender pay gap data this year, which was widely welcomed by HR staff tasked with keeping their organisations safe during the peak of the coronavirus outbreak. Nevertheless, if an employer is able to publish its data it will have the advantage of monitoring its progress towards its aims.

Looking ahead

Despite the challenges the pandemic has brought about for workplaces and households across the world, there is the potential to bring about positive changes in the UK going forward.

With fathers on average covering nearly double the hours of childcare than before the crisis (according to the Institute of Fiscal Studies), attitudes about the role of fathers in meeting family needs for childcare and domestic work during the working week may change. This may lead to societal and cultural change outside of the workplace, with a more equal sharing of childcare between parents after the pandemic ends as compared to the current statistics. This may impact on employers in terms of their seeing, over time, this impacting on issues within work which may currently impact on women more than men.

Based on issues which have been faced during the pandemic, organisations have the chance to consider how working practices may be amended in the interests of their business, and also to the advantage of employees, going forwards. Many employers have found remote working arrangements to be effective on a short term basis, and continuing with such flexibility to some degree on a permanent basis after the pandemic may be possible and well worthy of consideration. For the reasons set out in this article, that would be likely to support women in a manner that may then assist in promoting increased equality across an organisation.  However, targeted action can also be considered to assist with any imbalances and issues thrown up by this unique period by employees, where possible for an organisation, to try and prevent issues created by the pandemic having a lasting impact on progression for employees, including women who have felt the issues harder based on the statistics outlined above.

Considering such measures, and taking such measures where appropriate, should have a positive impact both in the short term, and the longer term for women, and for all employees.

If you have any questions or would like advice on any of the issues raised here, please get in touch with your usual Clyde & Co contact. Clyde & Co attorneys are available to assist you with these and other workplace issues. For more information, visit www.clydeco.com. 

For more information please contact Joseph Granato, Communications Manager at L&E Global at joseph.granato@leglobal.org.