EMPLOYERS: Navigating Where We Are Now

We are incredibly lucky to have the insight of an Employment Law expert to share with you. Jen Wright has written an article for Flexibility Works that lays out best practice to employers in Scotland, underpinned by up-to-the minute legal guidance:

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Where we are now...

Like all aspects of day to day life, employment and the world of work has been turned on its head with the onset Covid-19 pandemic. We are now starting to inch our way towards the new normal and think about how workplaces are going to adapt and reopen in the new world. Thinking about new ways of working, and in particular flexible working, is going to be key to that. In this blog I have set out some of the main issues which employers will have to wrestle with in the coming weeks and months, focussing on managing employees with caring responsibilities, changing employee working hours and employers' duty of care for employees.

A major issue for employers has been how they should manage employees who are not able to fulfil their role, either at home or attending a place of work, because of childcare issues. The Job Retention Scheme announced by the Government in late March was ultimately confirmed to be available for use for carers who are unable to work because of caring responsibilities, and the guidance expressly mentions those who are having to look after children as a result of school and nursery closures. This was a welcome announcement and a number of employers have utilised the scheme for employees in that category. A mandatory condition for use of the scheme until 30 June 2020 was that the employee can do no work at all for the business while furloughed. This means it did not offer an ideal solution for businesses who still had work to do and needed all their staff nor for carers who perhaps could not manage their full compliment of work but could do an adjusted work allocation or pattern. We now know that the Job Retention Scheme will be adjusted from July onwards to enable people to work part time and hopefully this can be utilised by employers to help their employees with caring responsibilibities who have been furloughed return to work.

For employers who have not used the Job Retention Scheme for employees with caring responsibility, the approach has to be one of 'bespoke flexibility'. ACAS has produced guidance encouraging employers to be practical, flexible and sensible. This is likely to involve a discussion with each member of staff to understand their caring responsibilities and the employer giving some thought to what can be flexed. Can hours be adjusted, if that person works 9 – 5 normally, do they really need to do that now? Can they spread their full compliment of hours across the week? Can deadlines be adjusted? Would they like to take a short reduction in hours to better manage their home commitments?

Employers will have to be mindful of whether the steps they take now to support carers, particularly parents working from home, could expose them to any discrimination complaints. Where employers are fair and balanced, that will hopefully be unlikely but some recent studies have suggested that most home schooling and childcare during lockdown has being undertaken by women therefore if they are unduly prejudiced as a result of arrangements put in place to manage work at the present time, they could argue that this amounts to a breach of the Equality Act 2010.

The next area to reflect on is changing employee terms and conditions. As employers start to plan for a return to the workplace, it has become clear that to ensure there is not a heavy demand on public transport during standard rush hours and to manage the number of people on work premises, normal working practices and in all likelihood, employment contracts will need to be adjusted. Standard employment contract wording will often say 'you will work from 9 – 5, Monday to Friday with a one hour lunch break' and 'you will work at our Glasgow office or such other premises as we consider necessary'. If employers, having carried out an audit of who needs to be on site and when, conclude that current work patterns and contractual terms are no longer fit for purpose, a contractual change exercise may be required. Before getting to that stage, I would recommend looking at what flexibility is provided for within the contract. A standard flexibility clause will not let you make root and branch changes to a contract but if the adjustments are fairly minor, it might be a helpful tool. If not, and you are in true change territory, that can be done by reaching agreement with the employee, unilaterally imposing the change or dismissing and re-engaging on new contractual terms. Reaching agreement carries the least risk and is the ideal approach in a situation such as this when it is unclear how long new working patterns are likely to have to remain in place and whether they may have to adjust again in the coming weeks and months. In addition, when looking at work patterns, employers will also need to be mindful of their obligations to employees to ensure the Working Time Regulations are adhered to. They say that employees should not generally work more than 48 hours per week, and that they should have a rest break of at least 20 minutes if their working day is more than 6 hours. They should have a daily rest period of at least 11 consecutive hours in each 24 hour period that they work. They should also have at least one fully non working day per week. So a fair amount to balance and weigh up!

Finally, I wanted to highlight the employer's duty of care. Employers have an implied duty to take reasonable care of the health and safety of their employees at work. It applies equally to employees working from business premises and those working at home. For employees working from home that will involve checking employees have the equipment they need to do their job, checking in with them to make sure they do not feel isolated or overwhelmed with work and making reasonable adjustments for employees who have a disability within the meaning of the Equality Act 2010. For employees returning to work premises, this is obviously going to be a more challenging obligation as we now have to consider social distancing, PPE and enhanced cleanliness. Employers who are planning for the reopening of their premises will have to carry out risk assessments to ensure employees are safe. If employees come back to work and do not feel that the measures in place are sufficient, they have a range of options including resigning and claiming constructive dismissal on the basis that the employer has not sufficient exercised its duty of care. The employee could also utilise the lesser known protections in s44 and s100 of the Employment Rights Act 1996. Under these sections if the employee reasonably believes that he is in serious or imminent danger, he/she can remove himself or herself from the workplace and cannot be subject to detriment or dismissal as a result. If the employee raised a claim pursuant to these provisions, the employer would have to demonstrate that the employee was being unreasonable in doing so. This is expected to be difficult for employers to prove in the current circumstances. However, an employee is less likely to be successful in such a claim if there have been sufficient policies and procedures put in place to ensure the employees are safe. Communication is going to be key here. Employers who need employees to return to a work premises are going to have go the extra mile to ensure employees feel safe.


What is clear is that as we begin to move out of lockdown, old working practices are not going to work for most employers. Although many of the flexible working arrangements that employers have put in place to navigate through the pandemic have been imposed on them with little opportunity for thought and planning, now is the time to reflect on what has worked, what has not and what will benefit the business and employees moving forward so that some positive change can be taken from this challenging situation.

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