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Your end-of-lockdown questions: answered

2 Sep 2021 By Jyoti Rambhai

People Management puts readers' concerns about hybrid working, mandatory vaccines and more to our panel of HR and employment law experts

The coronavirus pandemic has dominated the livelihoods of Britons for 18 months now. Many people had to adapt to working from home, parents had to juggle jobs with homeschooling, and HR found itself working through the minefield of constantly changing restrictions and policies.

But with restrictions easing and the government’s working-from-home guidance now lifted, the people profession is at a critical juncture. The pandemic has provided a catalyst for change – while there is still some nervousness about returning to previous routines, businesses are adapting their working practices and employees generally want to maintain their new-found flexibility. To help the profession navigate this so-called new normal, People Management spoke to the experts.

Meet the expert panel

  • Peter Cheese, chief executive of the CIPD
  • Dr Zofia Bajorek, senior research fellow at the Institute for Employment Studies
  • Matt Fryer, group compliance director at Brookson Legal 
  • Chadi Moussa, principal consultant and business psychologist at PeopleWise 
  • Helen Astill, director of Cherington HR, part of HR Solutions 

How do we manage expectations and make sure everyone is happy with all the changes to our working practices?

Peter Cheese: The most important thing is to maintain a very open dialogue with your workforces, and consult and engage with them on what’s working, and how we create more choice and opportunity, while also balancing the needs of the organisation. We also need to be genuinely open to learning as we go. We should not try to be prescriptive and write loads and loads of rules, but rather drive from principles.

Zofia Bajorek: The important thing to remember is that no two people will have experienced the pandemic in the same way. Some might have lost people to Covid; some might have had Covid themselves, and so have extra concerns about coming back to work; some people’s personal circumstances might have changed, such as they’ve taken up caring responsibilities. 

So everybody is going to have a slightly different expectation about what the return to the workplace will look like. It’s important they get a chance to be listened to in a meaningful, non-judgemental way.

Chadi Moussa: Consultation is absolutely critical. People not only feel differently about returning to work but about the structure of work and wider life. Taking a temperature check with employees to find out how they’re feeling and their concerns will help inform a policy in line with what people want. If organisations expect everyone to come back five days a week and employees are telling you they don’t want to come back at all, then you’re clearly going to have a conflict, but you’re also going to have very different nuances. You can’t please everybody; however, it’s likely that you’re going to hit the mark far better if you actually talk to your people and find out what they’re thinking.

Can we instruct staff to return to the office even if they don’t want to?

Matt Fryer: It’s important to understand the root cause of any reluctance from the employee to return to the office. Discuss the Covid-secure measures implemented to protect them and their colleagues and work collaboratively with them on a phased approach if appropriate. 

Companies can instruct employees to return to the office, although it is better to be clear with this message and the reasons behind doing so, and ensure that your policies are implemented uniformly across your company.

PC: There has been a very important cultural shift and I think businesses need to understand that people want to work more flexibly now. Historically, our working cultures have often – consciously or unconsciously – judged people on seeing them working and how hard we think they’re working. However, during the pandemic, it’s been much more on what staff produce, so employers need to learn from this.

CM: When all the restrictions cease to apply, I believe employers can mandate all staff to come back to the office. Whether that’s a good idea or not is another discussion. I would suggest that if you’re going to go down this route, you should take a phased approach, because front and centre should be people’s health, wellbeing and safety – just because restrictions are lifted, it absolutely does not mean that Covid has gone away.

What contingency plans should we have in place for a Covid outbreak at work?

ZB: The first thing is to make sure you’ve done your risk assessments. In organisations with more than 50 members of staff, they should be published on the intranet so staff can see what has been done and ensure their concerns have been covered. If not, then staff can then have an opportunity to ask questions about what happens in certain situations. 

If somebody does test positive, there has to be a track-and-trace process in place, making sure that anybody who’s been in the office or near that person is made aware – obviously the person doesn’t have to be named. HR managers should be up to date with the regulations on testing and social isolation so they can relay any concerns and anxieties that people might have. 

MF: Government guidance is constantly changing, so it’s important to keep up to date. Factors differ between working environments and business. Test and Trace requirements will need to be followed by all employees, so having the current contingency measures available in the event of a lockdown should still be at hand should your employees be required to isolate (and work from home).

Consider your ability to support testing employees, for example allowing reasonable time off.  Ultimately, this is a health and safety concern, so you should consider appropriate measures to keep your employees and visitors safe. Clean-air air-conditioning units and good ventilation is a good starting point along with a reduced office presence, where practical. Contractors can also be engaged as a temporary resource during periods of staff shortages; so maintaining relationships with suppliers to ensure that you have sufficient resources for absences is essential. 

What’s the risk of a ‘no jab, no job’ policy for when we return to offices?

MF: Such a policy could be discriminatory for employees who have underlying medical concerns that prevent them from being vaccinated. You therefore need to have an objectively justifiable reason for requiring vaccinations and most workplaces are unlikely to meet this requirement where other Covid protection measures can be used (eg social distancing measures or working from home). Along with the employment law risks around discrimination, the risk of unsettling employees with such an inflexible policy can have a negative impact on company’s culture and lead to increased resignations.

Adding a clause into contracts of employment is likely to be equally divisive and potentially discriminatory, so advice should be taken ahead of going down this route. This brings up the next question of how an employer will know if an employee has been vaccinated or not. Check your data protection clauses and privacy policies to see if you have the ability to process such data for your employees, and the circumstances in which you can use it, store it and must destroy it. Employees in most instances are not obliged to share this information with you, so you need to be very careful when requesting it.

Helen Astill: This will depend very much on the sector. In the care sector, we know that legislation is coming into force in November, so that unless somebody has a medical exemption, they are required to have a full vaccination. But in all other sectors, it’s much better to encourage people than to force them. 

Can we mandate that staff get tested 
regularly for Covid? 

MF: This will depend on the company’s health and safety policy and where the employee works from. For example, some premises may not permit access without taking a test or a negative result. Again, you must ensure that the rationale behind such policy can be justified and doesn’t discriminate against populations of your workforce.

ZB: With factory working, where people are quite close to each other and the risk of transmission is higher, it can be a reasonable request. But everything has to be done in a transparent way and proportionate to the risk. 

HA: It could be included as part of your Covid-safe arrangements, and would actually help alleviate some of the worries that employees might have about coming to the office. So you could say ‘let’s all be tested twice a week’ –  it’s something they’ve been doing in the medical sector for quite some time. 

How should we manage members of staff in the same team requesting different flexible working hours?

PC: We’re going to have to train managers to deal with some of these practical issues. You need to try to balance the desires of individuals who perhaps want to work more flexibly with how you want to make the team work in the most effective ways alongside the needs of the organisation. Businesses also need to ensure they have the relevant tech setups to be able to facilitate, support and manage meetings when staff are working in different places.

CM: The future of work looks like people having individual hybrid arrangements. In many organisations, you’ve got people who want to be back in the office five days a week, and they are collaborating with other colleagues who have not been in the office or working in different locations.

I would argue that a level of flexibility and virtual working is now an expectation. It would be brave of an employer, after they’ve seen people do their job effectively for 18 months, to not offer flexibility.

HA: You do it on a ‘first come, first served’ basis. Of course, that’s unless the request has been made for a reasonable adjustment in relation to a disability issue. Look at the first request and see if you can accept it: there are only eight reasons why you can turn down a flexible working request under the current legislation. Then you look at the next one. If that is identical, but you can no longer agree to it because now you’re going to be short-staffed, then you say no, because the business requirements are that you need somebody to work then. 

We’re switching to a hybrid model. Should this be reflected in our employees’ contracts?

PC:  The CIPD’s guidance is not to run too quickly to change employment contracts. Many employers are describing their practices as informal flexible working – in other words, your contract may say that your place of work is the office, but you’re given more flexibility. For example, you work from home in the morning so you can take the children to school.

So there’s debate about whether you have to enshrine all of these in a formal way or if it is more about culture and informal flexibility. I think let’s see how it goes, we’ve got so much to learn as we move forward.

MF: Ideally any change to employment should be reflected in the contract in order to show that both parties agree, however most companies will likely update the company handbook in the form of a new policy. Care should be taken to avoid employees claiming that the office is a temporary place of work, for which they should be paid expenses – careful drafting is required in this regard.

What kind of policies can we use to address wellbeing concerns such as presenteeism and burnout?

ZB: Highlighting to staff what their working hours are and what is expected of them. If you know people are experiencing poor mental wellbeing at work, have an employee assistance programme or use occupational health. But use it in a timely manner – don’t send people there when they’re already on their knees, make sure you have good managers who can recognise the signs..

CM: I’d suggest that every line manager has a wellbeing conversation with their employees – just an open, confidential chat. The pandemic has seen a lot of people face isolation, loneliness, anxiety and many other mental health problems: people are not going to leave those at the door when they return to work. And make sure those conversations are ongoing, too. Organisations have a legal duty of care to manage and assess the risk of people returning to the workplace which includes their mental health and wellbeing.

Our staff have taken less holiday and so have accrued a lot. How do we make sure they can take it?

HA: Employees, while they may have some say, are not entitled to specify when they’re going to take holiday. It may be the employer has to tell them they need to take it by or on a specific date. Currently we still have the emergency legislation giving the ability to carry forward untaken leave into next year. It was allowed for the first two years, so we’ve had the first carry over into 2021. So that would be the fallback.

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