Practical pointers for employers, as the return to the office brings staffing struggles and flexible working challenges

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BPE Sarah Lee

Sarah Lee, Partner in the BPE Employment team, looks at hybrid working as well as the implications for business as isolation rules are relaxed further this week.

In our last article, we explored the implications of “Freedom Day” and how to smoothly navigate back into the workplace. One month on, many people have started to return to the workplace and dusted off their workstations. However, businesses continue to face huge challenges associated with COVID, including the shift to hybrid working and flexible working requests, staffing struggles due to self-isolation requirements, backlogs of holiday requests, foreign travel….The list goes on.

In this month’s article, we explore a few ongoing challenges faced by employers and give some practical pointers on how to address these.

The shift to hybrid working and flexible working requests

Hybrid working

Multiple lockdowns and Government mandates and guidance to work from home over the last 17 months have, arguably, transformed our ways of working and our attitudes to and expectations of flexible working for ever.

The term “hybrid working”, which represents a combination of remote and office working, is now common parlance, and businesses must determine their stance on this, including what flexibility will be permitted as a “default” (if any) and where people will still be expected to make flexible working requests.

Many well-known organisations have announced plans to embrace hybrid working and the advantages which flow from this, including better employee engagement, cost savings (where office space can be reduced) and environmental benefits:

  • Nationwide will allow 13,000 office staff to choose where they work under a new “work anywhere” plan.
  • BP has told office-based staff they can spend two days a week working from home.
  • Santander plans to reduce the amount of office space it rents in London, close a number of offices across the country and ask staff to work from home more often or travel in to one of its remaining offices.
  • British Airways is considering selling its huge headquarters at Heathrow Airport as part of a move to flexible arrangements for about 2,000 staff.
  • Spotify will allow staff to work full time from home, from the office or a combination of the two, with the exact mix of home and office work being a decision for each employee and their manager to make together.

However, other organisations, especially those in the tech sphere, appear less flexible. For example, Google announced that, as of 1 September, employees wishing to work from home for more than 14 days would have to apply to do so, and that employees were also expected to “live within commuting distance” of offices. Amazon has stated that their plan is “to return to an office-centric culture as our baseline. We believe it enables us to invent, collaborate, and learn together most effectively.” IBM’s proposed system of remote working will involve 80% of the workforce working at least three days a week in the office.

There are, of course, challenges associated with remote working, especially when some staff are at work and others are remote, including:

  • A blurring of work and personal life, with some remote staff feeling obliged to remain online at home even after hours. Many organisations are now considering a “right to disconnect” policy, to ensure individuals do not feel pressured by “virtual presenteeism”.
  • Difficulties in managing remote staff, including maintaining positive relationships with and between remote team members.
  • A potential two-tier workforce where home and hybrid workers have flexibility but those who are unable to work from home do not.
  • Remote staff potentially feeling overlooked and/or disadvantaged where other team members are developing in-person relationships with managers etc.
  • Dynamics and communication during meetings and/or events where some attendees are in person and others are on Zoom.
  • Difficulties with collaboration and creativity.

Whatever your thoughts regarding hybrid working, it is critical to consult staff before making any final decisions in order to avoid bad feeling, disputes, employees resisting contractual changes and potential resignations from unhappy staff.

Flexible working requests

Regardless of whether some form of hybrid working is permitted, we are seeing increasing numbers of flexible working requests from individuals, including requests to work permanently from home. These can be difficult to reject, especially where staff have successfully worked from home throughout the pandemic.

When faced with a flexible working request, remember the following:

  • Check the employee is eligible to request flexible working e.g. they must have 26 weeks’ service and can only make one request per year.
  • Treat flexible working requests with an open mind as it may help retain good staff.
  • Be aware of the statutory requirements, e.g. time limits, reasons to be given and right to appeal.
  • Deal with requests in order and consistently – do not allow people to jump the queue or give preferential treatment.

The “pingdemic” and upcoming changes

The high number of individuals being told to self-isolate (e.g. more than 600,000 people in the week up to 14 July) has caused widespread problems over the last few months, with many businesses struggling to operate due to staff shortages caused by the “pingdemic”. It also caused particular concern in relation to sectors providing essential services. To address this, the government announced on 22 July that (from 26 July) workers in 16 sectors were eligible to avoid isolation if: they were double jabbed; underwent daily testing (with negative results); and their employer had registered them with the relevant government department as having a vital role.

Additional schemes have since been introduced to potentially exempt workers from self-isolation requirements and 24 sectors are now covered. However, the exemptions are only intended to run until 16 August, when everyone (in England) who has been fully vaccinated for more than two weeks will no longer have to self-isolate if a close contact tests positive. However, they will be advised to take a PCR test as soon as possible and must self-isolate if this is positive.

Businesses should, however, be careful not to ‘bully’ someone back to work even if they fall under the exemption, as there may be good reasons for the worker not to return, e.g. if they are symptomatic.

Remember also that individuals who are required to self-isolate (regardless of being symptomatic or not) are entitled to claim SSP from day one. It is also wise to treat self-isolation as sick leave and follow your usual sick pay policy, agree for the time to be taken as holiday if the employee requests this or offer working from home (if possible) and pay as normal, so that self-isolating employees are less likely to come into work for fear of losing out on pay.

Managing holiday issues

Following the lifting of remaining restrictions on 19 July, business is picking up for many organisations and more staff are needed. Unfortunately, this coincides with many staff seeking to take holiday which they have accrued but not taken since the pandemic began and even attempting a foreign holiday. This is creating substantial difficulties for businesses, including managing staffing levels, dealing with holiday requests (and holiday cancellations as destinations get moved on to the amber or red list) and potential quarantine upon return.

We would recommend having a clear and proactive approach to holidays, which you share with staff, to avoid disputes and unhappy staff over the next few months. When formulating your approach, remember that:

  • Following legislation introduced in March 2020, employees and workers are entitled to carry forward up to 4 weeks’ statutory paid holiday which they have not taken due to COVID into their next 2 holiday leave years.
  • If employees leave having amassed significant leave, untaken holiday calculated to the termination date will have to be paid.
  • Lack of annual leave being taken could result in burnout and poor physical and mental health which may, in turn, trigger additional grievances and resignations.

As a starting point, it is sensible to audit workforce holiday (namely, establishing who has accrued and taken what holiday), as this will help you with workforce planning and allow you to have individual conversations with employees who have amassed a large amount of holiday and to agree a plan with them regarding when and how this can be taken.

Check your employment contracts and policies in relation to carrying forward untaken leave, as staff may have a contractual right to carry forward a certain amount of holiday (as well as the statutory right to carry forward 4 weeks).

Agree holiday plans with employees and keep communications open regarding COVID-19 developments, such as travel quarantine, and encourage employees to take time off throughout the holiday year.

You can also require staff to take holiday by giving them twice the length of notice as the period holiday you want them to take (namely, two weeks’ notice if you want them to take one week’s holiday). However, requiring staff to use holiday in this way is generally seen as draconian and is unpopular with staff, so keep this as a last resort, e.g. if you have staff who are uncooperative and refuse to take any accrued leave.

Finally, if you have approved a staff member’s holiday request and they subsequently ask to cancel this (e.g. because their holiday destination moves on to the red list), you are not obliged to do so. However, as above, refusing to allow such a request will be contentious in these unprecedented circumstances, so do tread carefully.

For guidance on the need for vaccinations, please click here for an analysis of the implications for the care sector and here for our article on whether or not vaccinations can be a compulsory requirement generally in the workplace.

For support for your business as we move to the latest phase on isolation requirements and restrictions continue to ease, contact Sarah Lee at sarah.lee@bpe.co.uk or call 01242 248261 or contact another member of the BPE Employment team

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