Call us on:  0808 172 93 22 | Offices: London - Northampton

NEWS

Managing workplace stress in the current pandemic

While workplace wellbeing has been the focus for some time, there is increasing concern about the impact the current pandemic is having on employees’ mental health and the long-term socio-economic consequences.”

Even before the pandemic commentators were annually referencing the millions of days lost due to work-related stress and the need for action. By the time the pandemic hit us many employers already recognised that they could no longer afford to ignore the problem and mental wellbeing needed to be treated as a high priority. The pandemic has only served to magnify the problem as it has created new triggers that need to be assessed and managed.

Understanding your obligations

Unfortunately, the law on stress is not set out in one place and is piecemeal, which means it is often difficult for employers to fully appreciate the scope of their obligations. Duties are set out in various pieces of legislation, including the Health and Safety at Work etc Act 1974, the Working Time Regulations 1998 and the Equality Act 2010. A further dimension is added as employers also have implied duties, including for example, the obligation to provide a safe system of work, which encompasses protecting employees’ physical and mental well-being. Taking these duties as a whole, employers must ensure that their staff are not exposed to excessive levels of stress when at work.

What issues should we be aware of?

A nod to these legal duties in terms of working practices may minimise the risk of a legal claim but may not provide the support staff need.

When tackling the issue prior to the pandemic, management would be faced with stress triggers such as excessive workloads, long hours, bullying and harassment. While these triggers remain, an employer’s need to respond to operational and financial challenges has meant different challenges for its employees too. The most common concerns currently being raised are increased workloads with fewer resources, having to adapt to new working patterns or types of work with little support or time to adjust, home working which gives rise to feelings of isolation or the fear of being made redundant.

The impact of ignoring these factors is two-fold. From a social perspective, individuals will suffer from ill health. From a financial and operational perspective staff retention, engagement, attendance and productivity are all likely to be impacted in a negative way.

Taking small steps can make all the difference

“A small shift in approach can make all the difference to the lives of those who are suffering from stress. From a business perspective there will be better staff retention and engagement, improved attendance levels and increased productivity.”

Given the scale of the problem, employers need to act. A shift in approach does not need to involve a large amount of time and resources. As a starting point, there are some simple but effective strategies that can be adopted:

  • Assess the main risks and possible areas for concern on a regular basis.
  • Introduce clear wellbeing polices which create a supportive working culture.
  • Train managers and supervisors to spot the warning signs and intervene early.
  • Encourage more conversations about stress. Talking will help you to understand the causes and therefore put in place the right support when it is most needed.
  • Signpost employees to the support that is available, including expert resources if professional help is needed.

While these simple steps may not provide the total solution an employer who is prepared to recognise the issue and work with their employees is likely to experience lower absence rates and increased staff morale.

FG Solicitors is an expert in helping its clients address its employment law and people management issues that the current pandemic has raised so they have greater certainty over their financial and operational outcomes.

If you would like to discuss how to implement a workplace stress management plan for your organisation and understand the benefits of doing so, please feel free to call us on 0808 172 9322 for a no obligation discussion.

For further details about the legal services and assistance we provide to businesses, please click here.

This publication is for general guidance only. Advice should be taken in relation to a particular set of circumstances.

 

Legal risk management in uncertain times

“While the impact of the current pandemic has left many businesses feeling uncertain about their future, from an operational and financial perspective it is certain that there is more opportunity for legal risk.”

From an operational and financial perspective, risk and uncertainty are not the same thing. Uncertainty arises when we are unsure about future outcomes usually due to a lack of knowledge or insight. Businesses that operate in a climate of uncertainty are likely to find over time that operational and financial objectives will be severely impacted and the outcomes may be unpredictable. On the other hand, risk focuses on the good or bad outcomes of our actions or inactivity which means that the outcomes can be managed and controlled to achieve better results.

Replace uncertainty with risk management

There are many different types of threats which could damage your business from financial uncertainty created by the economic outlook, an IT security attack which could take the business down for days to an expensive and time consuming legal challenge by a client who is unhappy with a product or service or an employment tribunal claim by an employee who alleges they have been harassed by a colleague.

Awareness of the threats means a business is in a stronger position to respond to the negative impact the business may experience.

“There are five basic elements to a successful risk management process that will help develop a plan to mitigate against your biggest threats.”

In very simple terms, risk management is the process of:

Build resilience

Instead of having no idea whether your business objectives can be achieved or what might get in the way of their delivery, a systematic approach to risk management based on these five simple steps forces you to face up to the risks and enables you to make the right decision to make your business more resilient.

Prioritise legal risk

Any business that has not come out the right side of a legal dispute will want to avoid being in such a situation in the future. Therefore, any risk management plan should incorporate a section which considers legal risk.

“The nature of the business and the industry sector will determine those areas that create the most threat.”

Common legal risks are likely to arise from factors such as contractual relationships with third parties, changes in the law, technology and data security, intellectual property, competitors and employees.

Have you for example examined the potential legal risks that are involved in employing people in your business or are you prepared to leave things to chance? A workplace that is reliant upon out of date contracts of employment, has no clear policies and procedures and is not operating in line with current employment laws and regulations is likely to be faced with outcomes that are unpredictable when it comes to legal disputes in the employment tribunal.

However, the five-step approach to risk management will assist in identifying and managing legal risks with the aim of preventing these risks becoming costly legal liabilities and creating more certainty about operational and financial outcomes. This will mean having legally compliant contracts of employment and up to date policies and procedures underpinned by appropriate legal compliance training for managers and supervisors.

A more confident future

Overall, businesses that prefer to operate in a culture where it is unsure about what happens next will have an uncertain future. Those who want a more confident future will have a strong risk management culture that recognises the need to identify and manage legal risks.

FG Solicitors are experts in helping its clients safeguard their businesses from legal risks, so they have greater certainty over their financial and operational outcomes.

If you require further guidance on how to manage legal risks within your business, please feel free to call us on 0808 172 9322 for a no obligation discussion.

For further details about the legal services and assistance we provide to businesses, please click here.

 This publication is for general guidance only. Advice should be taken in relation to a particular set of circumstances.

THE TOP 7 TUPE RISK AREAS

Does TUPE apply? 

At the outset, the business should determine whether TUPE applies. Wherever possible this should be agreed with the other party before the business transfers or the contract moves to a different service provider. The risk arises when the parties cannot agree.

Failing to comply with consultation obligations

This is an issue where there are 10 or more employees in a non-unionised business/organisation, where there are no existing employee representatives who have been elected for the purpose of the transfer. In such instances the business/ organisation must arrange for the election of employee representatives – the regulations governing these elections, as well as the functions and responsibilities of those representatives are detailed, and financial penalties will be incurred if the regulations are breached. Both the transferor and the transferee may be liable for these penalties.

Identifying those who are to transfer and those who are to remain

This is an exercise that should be dealt with at an early stage of the planning process and should be able to withstand close scrutiny. Historically, this is an area that has given rise to a substantial raft of case law especially in specific problem areas, for example, where there are employees absent from the business due to long-term sick leave or furlough leave prior to the transfer taking place.

Dealing with the restructuring of the workforce post transfer

This is a risk area for both the transferor and the transferee. Restructuring which results in changes in headcount needs to be carefully handled in the light of the added protections offered by the TUPE regulations.

Ensuring pension rights are established

This is a particular issue for the transferee, especially when on-boarding staff who have previously enjoyed generous pension schemes with the transferor – a key example of this being on the award of a contract by a public sector organisation.

Changing terms and conditions post transfer

Identifying when change is permitted and the mechanism for change in terms and conditions of employment.

Relocating staff post transfer

This is now allowed but there are processes to be followed which can prove costly if breached.

FG Solicitors are experts in all areas of Employment Law and HR. Feel free to call us on 0808 1729 322 for a no obligation discussions.

This information is for general guidance only and does not constitute definite advice.

Getting back to work

Work Safety

Announcing the extension of the furlough scheme will have provided many businesses and employees with some comfort and further financial breathing space during these challenging times. The scheme will remain in place until 31 October 2020, which is perhaps longer than initially anticipated. The scheme’s current format will however change from August with employers being required to share the cost of furloughed staff with the government.

By the end of May more detail about the post-July changes will be published. Although the aim of the changes will be to provide employers with greater flexibility to get furloughed employees back to work on a part-time basis, without the full detail of the changes, the real benefit cannot be assessed. So there will be some nervousness until the employer’s contribution has been published.

Most employers supported by the furlough scheme will sensibly defer any definite decisions about the future shape of the workforce and their return to work plans until further information is available. In the meantime, there are certain key questions that need to be answered.

Can the business return to the way it was in the short and long-term from both a financial and operational perspective and if so, how quickly can this be achieved, if at all?

Even when driven by financial necessity, furloughing employees will have been a difficult decision but in many cases it would have been implemented overnight. Bringing the operation back to life and having sufficient revenue streams to support this move is likely to be a more complex process; a new strategy may be required. Where people are at the core of the operation, workforce planning will be an critical part of developing a new strategy, which may inevitably involve restructuring and redundancies. Changes to contractual terms and conditions of employment may also be necessary. In either case, careful planning will ensure that all legal obligations, including complying with any consultation requirements are satisfied to minimise the risk of claims in the employment tribunal.

How will employees’ expectations be managed?

Until the recent announcement, the focus has been on the furlough scheme ending at the end of June. In contrast to the suggestion furlough is addictive, the majority of those furloughed will have been focusing on returning to work on 1 July, which is probably what individuals believed they were signing up to under their furlough agreements. Financial reasons will be at the heart of the decision for any business to utilise the scheme for as long as possible. In making this decision, employers need to be able to address employees’ current expectations, not only in terms of a continued requirement to remain at home but also the financial impact that it may have on them personally.  A clearly communicated rationale and a keeping in touch plan will be essential to retain the engagement of those on long-term furlough, if those employees are key to future business success once the recovery period is underway.

The consequence of long-term furlough means that employees are being asked to agree to a continued variation of their contracts of employment. If furlough is to be extended it will be important to establish if current furlough agreements can be relied upon or whether new agreements will need to be issued to avoid breach of contract and wage claims.

Are there any health considerations that need to be addressed in the return to work plan?

There is still no certainty about the curtailment of the virus and the health risks are still present. Any return to work plan must be supported by a thorough health risk assessment. The assessment needs to start from an employee’s home and include their journey to and from work. It is difficult to control who individuals come into contact with when away from work. Control measures will need to be implemented, including reiterating the importance of following the government’s social distancing measures and good hygiene. Further hard work will be needed once the employee is back at work to manage any health risks, with adequate controls being implemented. Adhering to government and the Health and Safety Executive guidance should be non-negotiable from the perspective of both the business and all employees when it comes to protecting individual well-being. Vigilance and flexibility in relation to control measures will be important to safeguard health, if the level of risk increases. The workplace is likely to feel and may look very different when employees return. It is important that clear guidance and training is provided on how to work safely and protect health.

Mental health should also be a factor that is considered as part of any risk assessment. This factor is multi-faceted. Some employees may need reassurance as they have concerns about their personal safety. Others may struggle to adapt when returning, particularly if the work regime feels unfamiliar. Deferring a return to work or making a request that homeworking is undertaken, may leave individuals feeling left behind and isolated. Employers have a legal duty to tackle work-related mental health issues; risks need to be assessed and controlled.

How will a phased return to work be managed?

Roles and skills will have been identified as necessary to support the initial recovery phase, while less business critical roles are likely to be kept under review as progress is made. Resuming some level of operation will be perceived as a positive step but there are potential legal risks that need to be addressed.

A phased return means that choices will have to be made about who returns, and from August whether this is on a full-time or part-time basis (if home working cannot continue), and who stays at home furloughed. Employment law still applies irrespective. To avoid any legal challenge, employers need to be transparent about the selection criteria adopted to bring people back to work while others remain at home. It is essential that this process is documented, and the audit trail must be capable of demonstrating that selection is fair, based legitimate business reasons and is not discriminatory.

Is business ready to be scrutinised?

The government’s focus is now on a transition period, with employers starting to take back responsibility for the cost of their workforce. In the absence of further detail, it is unclear if employers will be required to justify decisions made to retain employees on furlough until the end of October. Employers may be required to justify their decisions made about keeping employees on furlough throughout the extended period. The furlough scheme is not there to avoid dealing with problem employees. At some point concerns will have to be addressed.

The furlough scheme extension will continue to protect many jobs as the economy recovers. While waiting to learn more about the changes to the scheme from August, from an employment law and people management perspective employers should now start to sketch out the future for its operations and the workforce.

FG Solicitors are experts in all areas of Employment Law and HR, and we can slide your business through the business recover stages. Feel free to call us on 0808 1729 322 for a no obligation discussions.

This publication is for general guidance only. Advice should be taken in relation to a particular set of circumstances.

 

 

THE CHANGING FACE OF WORK!

THE CHANGING FACE OF WORK!

For the last two decades the notion that innovations in industrial and manufacturing processes and a digitised professional services industry, would lead to a shorter working week and increased leisure time has been a common feature of work analysis in the United Kingdom.
The idea that we may all be required to work less or, at the very least,  differently has now been brought back into sharp focus by the current COVID-19 pandemic.  On 31 January, the UK saw the first reported case of viral infection and it can scarcely be believed that by 20 March, all restaurants, pubs, clubs, and indoor sport and leisure facilities were ordered to close.
On 23 March these measures were tightened further, with wide-ranging restrictions made on freedom of movement, enforceable in law. At the time of writing, it is inconceivable that there will be any relaxation of the current lockdown in the near future.

What does all of this mean for the world of work?

The arrival of COVID-19 took away control of the working environment and created an acute balancing act between economic survival and employee health & safety. The government’s introduction of the furlough scheme offers short term support for the current suspension of commercial activity but not a solution.
In the meantime, employers will be occupied with thoughts of business survival and once this is achieved some very real considerations as to what form the structure and dynamics of the workforce will take in a post COVID-19 era.

Will working from home become the new norm? Will there be a need to have offices and the cost of maintaining them?

If nothing else, COVID-19 has ignited a massive experiment in working life and is allowing businesses to test the various scenarios to see how well they would cope if the current enforced changes became a permanent reality in some form or another. Change of this magnitude will certainly require a cultural and psychological shift on both sides and great preparation will be required if it is to have any chance of success.
For most businesses, having an office is not merely a place to house its workforce, it is also seen as a symbol of success, serving as a magnet to attract custom and to recruit the brightest and the best. Some employers hold the view that true team working requires physical proximity which cannot be achieved through working remotely. It remains to be seen whether the experience and lessons learnt from imposed home working changes that view.

What about businesses with production processes that cannot be performed from home?

Will the push to drive down costs and recover commercial stability result in permanently reduced wages, reduced headcount, and increased outsourcing? These are only a few of the vexed questions employers will need to address during and post lockdown. The exploring and review of all scenarios begins now and employers are well advised to create, maintain and retain the figures and statistical information on which reliance can be based.
It should also be part of the current HR strategy for any employer with employees on furlough leave, to have an established method of global communication with them. COVID-19 has presented businesses with a sea of uncharted water to navigate and this will be the same for employees who are not only pre-occupied with staying safe but will also be concerned with what the future holds. Regular contact has an invaluable role to play in maintaining morale and motivation.

What is the position of the law in all of this?

The government has been keen to point out that the emergency measures introduced to tackle COVID-19 does not displace existing employment law. Even in these challenging times, employers that disregard existing law, do so at their own peril and at a time when they can ill afford to get it wrong.
It has come as no surprise that employers caught with the suddenness of the COVID-19 lockdown and the immediate impact on revenue have put employees into the furlough scheme with a 20 per cent reduction in pay. Employees faced with the prospect of losing jobs have agreed to this reduction with the mind-set that when they eventually emerge from furlough leave, wages will revert to their pre- furlough position. From an employer’s position much will depend on the terms of any agreement put in place to vary the existing contract at the time furlough leave began.
While it may be possible for employers to argue that any change was for a substantial reason justifying the change, maintaining that position in the absence of a proper consultation process may, post-lockdown, result in a demotivated workforce at precisely the time when full engagement is required. This, added to the cost and inconvenience of claims from employees will become a major and unwelcome distraction.
The acid test will be when the 80 per cent of government support is no longer available in the form of furlough leave, as to the level of redundancies that may take place in businesses as a result. At this point, processes will become vital if conflict is to be avoided. The spotlight will largely be on consultation obligations, individual and collective. The accuracy of information held in personnel files will also be of paramount importance in effecting risk-managed change.
It is a safe bet that the road to recovery will be long and challenging for both employers and employees. Returning to an optimised way of working will require enormous effort. Individuals may well be affected by bereavement, the uncertainty over the normal operation of schools will undoubtedly present challenges for employees with children. All factors which will need to be considered and managed when normal service is resumed.
For information and support please do not hesitate to contact Floyd Graham or a member of the Employment Law Team of FG Solicitors on 01604 871143 or visit our website for answers to frequently asked questions relating to COVID-19.

Call us on:  0808 172 93 22

NEWS

Managing workplace stress in the current pandemic

While workplace wellbeing has been the focus for some time, there is increasing concern about the impact the current pandemic is having on employees’ mental health and the long-term socio-economic consequences.”

Even before the pandemic commentators were annually referencing the millions of days lost due to work-related stress and the need for action. By the time the pandemic hit us many employers already recognised that they could no longer afford to ignore the problem and mental wellbeing needed to be treated as a high priority. The pandemic has only served to magnify the problem as it has created new triggers that need to be assessed and managed.

Understanding your obligations

Unfortunately, the law on stress is not set out in one place and is piecemeal, which means it is often difficult for employers to fully appreciate the scope of their obligations. Duties are set out in various pieces of legislation, including the Health and Safety at Work etc Act 1974, the Working Time Regulations 1998 and the Equality Act 2010. A further dimension is added as employers also have implied duties, including for example, the obligation to provide a safe system of work, which encompasses protecting employees’ physical and mental well-being. Taking these duties as a whole, employers must ensure that their staff are not exposed to excessive levels of stress when at work.

What issues should we be aware of?

A nod to these legal duties in terms of working practices may minimise the risk of a legal claim but may not provide the support staff need.

When tackling the issue prior to the pandemic, management would be faced with stress triggers such as excessive workloads, long hours, bullying and harassment. While these triggers remain, an employer’s need to respond to operational and financial challenges has meant different challenges for its employees too. The most common concerns currently being raised are increased workloads with fewer resources, having to adapt to new working patterns or types of work with little support or time to adjust, home working which gives rise to feelings of isolation or the fear of being made redundant.

The impact of ignoring these factors is two-fold. From a social perspective, individuals will suffer from ill health. From a financial and operational perspective staff retention, engagement, attendance and productivity are all likely to be impacted in a negative way.

Taking small steps can make all the difference

“A small shift in approach can make all the difference to the lives of those who are suffering from stress. From a business perspective there will be better staff retention and engagement, improved attendance levels and increased productivity.”

Given the scale of the problem, employers need to act. A shift in approach does not need to involve a large amount of time and resources. As a starting point, there are some simple but effective strategies that can be adopted:

  • Assess the main risks and possible areas for concern on a regular basis.
  • Introduce clear wellbeing polices which create a supportive working culture.
  • Train managers and supervisors to spot the warning signs and intervene early.
  • Encourage more conversations about stress. Talking will help you to understand the causes and therefore put in place the right support when it is most needed.
  • Signpost employees to the support that is available, including expert resources if professional help is needed.

While these simple steps may not provide the total solution an employer who is prepared to recognise the issue and work with their employees is likely to experience lower absence rates and increased staff morale.

FG Solicitors is an expert in helping its clients address its employment law and people management issues that the current pandemic has raised so they have greater certainty over their financial and operational outcomes.

If you would like to discuss how to implement a workplace stress management plan for your organisation and understand the benefits of doing so, please feel free to call us on 0808 172 9322 for a no obligation discussion.

For further details about the legal services and assistance we provide to businesses, please click here.

This publication is for general guidance only. Advice should be taken in relation to a particular set of circumstances.

 

Legal risk management in uncertain times

“While the impact of the current pandemic has left many businesses feeling uncertain about their future, from an operational and financial perspective it is certain that there is more opportunity for legal risk.”

From an operational and financial perspective, risk and uncertainty are not the same thing. Uncertainty arises when we are unsure about future outcomes usually due to a lack of knowledge or insight. Businesses that operate in a climate of uncertainty are likely to find over time that operational and financial objectives will be severely impacted and the outcomes may be unpredictable. On the other hand, risk focuses on the good or bad outcomes of our actions or inactivity which means that the outcomes can be managed and controlled to achieve better results.

Replace uncertainty with risk management

There are many different types of threats which could damage your business from financial uncertainty created by the economic outlook, an IT security attack which could take the business down for days to an expensive and time consuming legal challenge by a client who is unhappy with a product or service or an employment tribunal claim by an employee who alleges they have been harassed by a colleague.

Awareness of the threats means a business is in a stronger position to respond to the negative impact the business may experience.

“There are five basic elements to a successful risk management process that will help develop a plan to mitigate against your biggest threats.”

In very simple terms, risk management is the process of:

Build resilience

Instead of having no idea whether your business objectives can be achieved or what might get in the way of their delivery, a systematic approach to risk management based on these five simple steps forces you to face up to the risks and enables you to make the right decision to make your business more resilient.

Prioritise legal risk

Any business that has not come out the right side of a legal dispute will want to avoid being in such a situation in the future. Therefore, any risk management plan should incorporate a section which considers legal risk.

“The nature of the business and the industry sector will determine those areas that create the most threat.”

Common legal risks are likely to arise from factors such as contractual relationships with third parties, changes in the law, technology and data security, intellectual property, competitors and employees.

Have you for example examined the potential legal risks that are involved in employing people in your business or are you prepared to leave things to chance? A workplace that is reliant upon out of date contracts of employment, has no clear policies and procedures and is not operating in line with current employment laws and regulations is likely to be faced with outcomes that are unpredictable when it comes to legal disputes in the employment tribunal.

However, the five-step approach to risk management will assist in identifying and managing legal risks with the aim of preventing these risks becoming costly legal liabilities and creating more certainty about operational and financial outcomes. This will mean having legally compliant contracts of employment and up to date policies and procedures underpinned by appropriate legal compliance training for managers and supervisors.

A more confident future

Overall, businesses that prefer to operate in a culture where it is unsure about what happens next will have an uncertain future. Those who want a more confident future will have a strong risk management culture that recognises the need to identify and manage legal risks.

FG Solicitors are experts in helping its clients safeguard their businesses from legal risks, so they have greater certainty over their financial and operational outcomes.

If you require further guidance on how to manage legal risks within your business, please feel free to call us on 0808 172 9322 for a no obligation discussion.

For further details about the legal services and assistance we provide to businesses, please click here.

 This publication is for general guidance only. Advice should be taken in relation to a particular set of circumstances.

THE TOP 7 TUPE RISK AREAS

Does TUPE apply? 

At the outset, the business should determine whether TUPE applies. Wherever possible this should be agreed with the other party before the business transfers or the contract moves to a different service provider. The risk arises when the parties cannot agree.

Failing to comply with consultation obligations

This is an issue where there are 10 or more employees in a non-unionised business/organisation, where there are no existing employee representatives who have been elected for the purpose of the transfer. In such instances the business/ organisation must arrange for the election of employee representatives – the regulations governing these elections, as well as the functions and responsibilities of those representatives are detailed, and financial penalties will be incurred if the regulations are breached. Both the transferor and the transferee may be liable for these penalties.

Identifying those who are to transfer and those who are to remain

This is an exercise that should be dealt with at an early stage of the planning process and should be able to withstand close scrutiny. Historically, this is an area that has given rise to a substantial raft of case law especially in specific problem areas, for example, where there are employees absent from the business due to long-term sick leave or furlough leave prior to the transfer taking place.

Dealing with the restructuring of the workforce post transfer

This is a risk area for both the transferor and the transferee. Restructuring which results in changes in headcount needs to be carefully handled in the light of the added protections offered by the TUPE regulations.

Ensuring pension rights are established

This is a particular issue for the transferee, especially when on-boarding staff who have previously enjoyed generous pension schemes with the transferor – a key example of this being on the award of a contract by a public sector organisation.

Changing terms and conditions post transfer

Identifying when change is permitted and the mechanism for change in terms and conditions of employment.

Relocating staff post transfer

This is now allowed but there are processes to be followed which can prove costly if breached.

FG Solicitors are experts in all areas of Employment Law and HR. Feel free to call us on 0808 1729 322 for a no obligation discussions.

This information is for general guidance only and does not constitute definite advice.

Getting back to work

Work Safety

Announcing the extension of the furlough scheme will have provided many businesses and employees with some comfort and further financial breathing space during these challenging times. The scheme will remain in place until 31 October 2020, which is perhaps longer than initially anticipated. The scheme’s current format will however change from August with employers being required to share the cost of furloughed staff with the government.

By the end of May more detail about the post-July changes will be published. Although the aim of the changes will be to provide employers with greater flexibility to get furloughed employees back to work on a part-time basis, without the full detail of the changes, the real benefit cannot be assessed. So there will be some nervousness until the employer’s contribution has been published.

Most employers supported by the furlough scheme will sensibly defer any definite decisions about the future shape of the workforce and their return to work plans until further information is available. In the meantime, there are certain key questions that need to be answered.

Can the business return to the way it was in the short and long-term from both a financial and operational perspective and if so, how quickly can this be achieved, if at all?

Even when driven by financial necessity, furloughing employees will have been a difficult decision but in many cases it would have been implemented overnight. Bringing the operation back to life and having sufficient revenue streams to support this move is likely to be a more complex process; a new strategy may be required. Where people are at the core of the operation, workforce planning will be an critical part of developing a new strategy, which may inevitably involve restructuring and redundancies. Changes to contractual terms and conditions of employment may also be necessary. In either case, careful planning will ensure that all legal obligations, including complying with any consultation requirements are satisfied to minimise the risk of claims in the employment tribunal.

How will employees’ expectations be managed?

Until the recent announcement, the focus has been on the furlough scheme ending at the end of June. In contrast to the suggestion furlough is addictive, the majority of those furloughed will have been focusing on returning to work on 1 July, which is probably what individuals believed they were signing up to under their furlough agreements. Financial reasons will be at the heart of the decision for any business to utilise the scheme for as long as possible. In making this decision, employers need to be able to address employees’ current expectations, not only in terms of a continued requirement to remain at home but also the financial impact that it may have on them personally.  A clearly communicated rationale and a keeping in touch plan will be essential to retain the engagement of those on long-term furlough, if those employees are key to future business success once the recovery period is underway.

The consequence of long-term furlough means that employees are being asked to agree to a continued variation of their contracts of employment. If furlough is to be extended it will be important to establish if current furlough agreements can be relied upon or whether new agreements will need to be issued to avoid breach of contract and wage claims.

Are there any health considerations that need to be addressed in the return to work plan?

There is still no certainty about the curtailment of the virus and the health risks are still present. Any return to work plan must be supported by a thorough health risk assessment. The assessment needs to start from an employee’s home and include their journey to and from work. It is difficult to control who individuals come into contact with when away from work. Control measures will need to be implemented, including reiterating the importance of following the government’s social distancing measures and good hygiene. Further hard work will be needed once the employee is back at work to manage any health risks, with adequate controls being implemented. Adhering to government and the Health and Safety Executive guidance should be non-negotiable from the perspective of both the business and all employees when it comes to protecting individual well-being. Vigilance and flexibility in relation to control measures will be important to safeguard health, if the level of risk increases. The workplace is likely to feel and may look very different when employees return. It is important that clear guidance and training is provided on how to work safely and protect health.

Mental health should also be a factor that is considered as part of any risk assessment. This factor is multi-faceted. Some employees may need reassurance as they have concerns about their personal safety. Others may struggle to adapt when returning, particularly if the work regime feels unfamiliar. Deferring a return to work or making a request that homeworking is undertaken, may leave individuals feeling left behind and isolated. Employers have a legal duty to tackle work-related mental health issues; risks need to be assessed and controlled.

How will a phased return to work be managed?

Roles and skills will have been identified as necessary to support the initial recovery phase, while less business critical roles are likely to be kept under review as progress is made. Resuming some level of operation will be perceived as a positive step but there are potential legal risks that need to be addressed.

A phased return means that choices will have to be made about who returns, and from August whether this is on a full-time or part-time basis (if home working cannot continue), and who stays at home furloughed. Employment law still applies irrespective. To avoid any legal challenge, employers need to be transparent about the selection criteria adopted to bring people back to work while others remain at home. It is essential that this process is documented, and the audit trail must be capable of demonstrating that selection is fair, based legitimate business reasons and is not discriminatory.

Is business ready to be scrutinised?

The government’s focus is now on a transition period, with employers starting to take back responsibility for the cost of their workforce. In the absence of further detail, it is unclear if employers will be required to justify decisions made to retain employees on furlough until the end of October. Employers may be required to justify their decisions made about keeping employees on furlough throughout the extended period. The furlough scheme is not there to avoid dealing with problem employees. At some point concerns will have to be addressed.

The furlough scheme extension will continue to protect many jobs as the economy recovers. While waiting to learn more about the changes to the scheme from August, from an employment law and people management perspective employers should now start to sketch out the future for its operations and the workforce.

FG Solicitors are experts in all areas of Employment Law and HR, and we can slide your business through the business recover stages. Feel free to call us on 0808 1729 322 for a no obligation discussions.

This publication is for general guidance only. Advice should be taken in relation to a particular set of circumstances.

 

 

THE CHANGING FACE OF WORK!

THE CHANGING FACE OF WORK!

For the last two decades the notion that innovations in industrial and manufacturing processes and a digitised professional services industry, would lead to a shorter working week and increased leisure time has been a common feature of work analysis in the United Kingdom.
The idea that we may all be required to work less or, at the very least,  differently has now been brought back into sharp focus by the current COVID-19 pandemic.  On 31 January, the UK saw the first reported case of viral infection and it can scarcely be believed that by 20 March, all restaurants, pubs, clubs, and indoor sport and leisure facilities were ordered to close.
On 23 March these measures were tightened further, with wide-ranging restrictions made on freedom of movement, enforceable in law. At the time of writing, it is inconceivable that there will be any relaxation of the current lockdown in the near future.

What does all of this mean for the world of work?

The arrival of COVID-19 took away control of the working environment and created an acute balancing act between economic survival and employee health & safety. The government’s introduction of the furlough scheme offers short term support for the current suspension of commercial activity but not a solution.
In the meantime, employers will be occupied with thoughts of business survival and once this is achieved some very real considerations as to what form the structure and dynamics of the workforce will take in a post COVID-19 era.

Will working from home become the new norm? Will there be a need to have offices and the cost of maintaining them?

If nothing else, COVID-19 has ignited a massive experiment in working life and is allowing businesses to test the various scenarios to see how well they would cope if the current enforced changes became a permanent reality in some form or another. Change of this magnitude will certainly require a cultural and psychological shift on both sides and great preparation will be required if it is to have any chance of success.
For most businesses, having an office is not merely a place to house its workforce, it is also seen as a symbol of success, serving as a magnet to attract custom and to recruit the brightest and the best. Some employers hold the view that true team working requires physical proximity which cannot be achieved through working remotely. It remains to be seen whether the experience and lessons learnt from imposed home working changes that view.

What about businesses with production processes that cannot be performed from home?

Will the push to drive down costs and recover commercial stability result in permanently reduced wages, reduced headcount, and increased outsourcing? These are only a few of the vexed questions employers will need to address during and post lockdown. The exploring and review of all scenarios begins now and employers are well advised to create, maintain and retain the figures and statistical information on which reliance can be based.
It should also be part of the current HR strategy for any employer with employees on furlough leave, to have an established method of global communication with them. COVID-19 has presented businesses with a sea of uncharted water to navigate and this will be the same for employees who are not only pre-occupied with staying safe but will also be concerned with what the future holds. Regular contact has an invaluable role to play in maintaining morale and motivation.

What is the position of the law in all of this?

The government has been keen to point out that the emergency measures introduced to tackle COVID-19 does not displace existing employment law. Even in these challenging times, employers that disregard existing law, do so at their own peril and at a time when they can ill afford to get it wrong.
It has come as no surprise that employers caught with the suddenness of the COVID-19 lockdown and the immediate impact on revenue have put employees into the furlough scheme with a 20 per cent reduction in pay. Employees faced with the prospect of losing jobs have agreed to this reduction with the mind-set that when they eventually emerge from furlough leave, wages will revert to their pre- furlough position. From an employer’s position much will depend on the terms of any agreement put in place to vary the existing contract at the time furlough leave began.
While it may be possible for employers to argue that any change was for a substantial reason justifying the change, maintaining that position in the absence of a proper consultation process may, post-lockdown, result in a demotivated workforce at precisely the time when full engagement is required. This, added to the cost and inconvenience of claims from employees will become a major and unwelcome distraction.
The acid test will be when the 80 per cent of government support is no longer available in the form of furlough leave, as to the level of redundancies that may take place in businesses as a result. At this point, processes will become vital if conflict is to be avoided. The spotlight will largely be on consultation obligations, individual and collective. The accuracy of information held in personnel files will also be of paramount importance in effecting risk-managed change.
It is a safe bet that the road to recovery will be long and challenging for both employers and employees. Returning to an optimised way of working will require enormous effort. Individuals may well be affected by bereavement, the uncertainty over the normal operation of schools will undoubtedly present challenges for employees with children. All factors which will need to be considered and managed when normal service is resumed.
For information and support please do not hesitate to contact Floyd Graham or a member of the Employment Law Team of FG Solicitors on 01604 871143 or visit our website for answers to frequently asked questions relating to COVID-19.