Strategy

UK Employment Flash – September 2021 | JD Supra

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[co-author: Luisa Luttgen]

In this issue of UK Employment Flash, we examine the latest employment law developments from the UK, including the law governing the return to the workplace and flexible working requests and a proposal to impose a duty on employers to prevent sexual harassment. Other topics include diversity targets for public company boards and executive teams and changes to EU and UK rules governing the transfer of personal data.

Ensuring a Safe Workplace and Mandating Vaccinations

UK employers will need to consider a range of em ployment and health and safety issues this autumn as they finalise and implement their return-to-work plans. We shine a light on mandatory vaccinations, how to manage employees who refuse to return to the workplace and COVID-19 risk assessments.

Following the widespread rollout of COVID-19 vaccinations this year, and with the UK government guidance on working remotely now lifted, employers in the UK face a variety of challenges making sure the workplace is safe as employees return to the office. This is made more difficult given the changing risk profile of the virus.

While in many jurisdictions vaccinations are required as a condition of returning to the office, outside of certain care settings, where vaccinations are mandatory, vaccine requirements have not been tested in the English courts. Public Health England advice supports employers in encouraging employees to get vaccinated to protect themselves and others from infection, but employers that mandate vaccinations as a condition of returning to work could risk potential discrimination claims from employees who are not vaccinated for health or religious reasons. Mandatory vaccination clauses in employment contracts, for either new hires or existing employees (who would need to agree to such an amendment), present similar issues. As a result of this uncertainty, and to minimise the potential for claims, many UK employers have instead required either vaccination or evidence of a negative COVID-19 test as a condition of entry to the office.

Employers will likely have to manage employees who refuse to return to the workplace, either because they possess a protected characteristic under the UK’s Equality Act 2010, live with someone who does or fear the health risks of the daily commute. While employees may be protected from dismissal or detriment if they reasonably believe that returning to their usual workplace places them in serious and imminent danger, recent tribunal decisions have shown that a general fear of contracting COVID-19, if the individual is not clinically extremely vulnerable, is unlikely to be sufficient to bring a claim, especially where the employer has adopted a comprehensive COVID-19 risk assessment and follows latest government guidance. Nevertheless, employers should follow best practice where possible and consult with individual employees to understand their concerns and explain any reasonable steps taken to mitigate the risk.

Employers should keep in mind the general requirement to carry out health and safety risk assessments, including a health and safety risk assessment in relation to the specific COVID-19 risks associated with a return to the office. These will help employers demonstrate that any measures they implement are proportionate and have been considered in light of the risks of COVID-19 and office working. If there are significant changes in the risk profile of the virus ― a surge in cases, for instance, or vaccine efficacy wanes significantly over the autumn and winter ― then previous health and safety assessments will need to be updated.

Since the UK has moved to Step 4 of the government roadmap to return to normality and fulsome restrictions on face coverings and social distancing, including in the workplace, have been dropped from the advisory guidance, the onus is on employers to make their own decisions, guided by legal advice, on the appropriate health and safety measures for their staff.

Flexible Working: Unintended Consequences for Employers

Some companies might be reconsidering location-weighted salaries if employees work remotely. Remote working could also have consequences for diversity programs and give rise to discrimination claims if the employees who opt to work from home are not representative of the workforce.

A recent BBC survey found that most people in the UK do not believe workers will return to the office full-time after the coronavirus pandemic. The UK government is also considering proposals to allow all employees the right to request flexible working from day one at a new employer (rather than the current requirement of waiting six months after they start work). Whatever the outcome of these proposals and changing employee expectations, a certainty of the post-pandemic world is that the rise of flexible and remote working will redefine the workplace. For employers managing this new landscape, there are unintended pitfalls to be wary of.

With added flexibility and hybrid working, some employers are considering pay cuts for employees who work from home or removing location-weighted salaries for jobs based in more expensive cities like London. Employers seeking to roll out pay cuts or similar measures would need to make changes to employment contracts, which would require employee consent. It is unlikely that employees will agree to pay cuts in exchange for greater flexibility, at least not without a clear understanding of the business case for the cut. For employees based in more expensive cities, removing location-weighted salaries may also be poorly received as the cost of living is usually higher compared to other regions. Any employer considering this route should consult with employees and bear in mind restrictions in the employment contract and the potential impact on employee relations.

A further consideration for employers contemplating hybrid working is potential exposure to indirect discrimination claims. If it can be shown that the majority of home workers are on lower salaries and have a protected characteristic (such as sex, race, age or disability) or that most employees who unsuccessfully submit flexible working requests have a protected characteristic, companies may be opening themselves up to indirect discrimination claims. While these present a potential liability exposure, the added publicity risk can affect employers’ reputation and ability to attract employees.

Even if employers roll out flexible working policies with the best intentions, they should take steps to consider ramifications on their ability to retain, train and promote talent. In particular, if the majority of employees who take up flexible work options are women, this may deepen the gender divide and pay gap in the workplace and have consequences for the ability to promote or retain such employees, especially if their flexible work arrangement is held against them. Some of these consequences may only become apparent years down the line and may have an impact on the diversity of future senior leadership. Employers should consider, as a matter of law and workplace culture, what steps they can take to ensure employees on hybrid or flexible working arrangements do not get left behind.

For employers rolling out new flexible working policies, a sensible approach would be to engage employees on the proposals. Initiating a trial period and collating employee feedback can help employers spot unintended pitfalls and develop their policies. While there is no single, universal approach to flexible working, each employer’s stance sends a message to their employees on what the organization values and will have implications on managing talent, the organization’s brand and employee relations for years to come.

Employers’ Discretion To Deny Flexible Working Requests Is Limited

A recent Employment Tribunal decision in relation to an employer’s refusal to grant a flexible working request from a working mother highlights the dangers for employers in applying a blanket policy of refusing such requests.

On 12 August 2021, an English Employment Tribunal (case no. 2205199/2019) awarded a claimant £185,000 after her request for flexible working was refused. The claimant was an estate agent who asked to work four days a week and to finish early at 5 pm when she returned from maternity leave so she could pick up her daughter from nursery. Her employer refused to consider her request.

While…

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