By the time you read this no doubt there will be further changes in the Government guidance, however the current advice continues to be the same – work from home if you can. No matter how the guidance changes I am certain that this pandemic has altered the way we work forever.
Before this pandemic many businesses were taking steps to embrace flexible home working whilst being cautious to ensure that they trusted their employees to carry out their jobs. Whilst flexible working was on the agenda of many businesses the issue now has pushed its way straight to the top.
During such unprecedented times, businesses are being continuously reminded to support their employees and stay connected on a regular basis. Whilst this is important, we must consider the question: can this go too far? Employers must ensure that they and their employees do not cross the line from supporting their colleagues with reasonable monitoring, to harassing or micromanaging them.
Everyone is adapting including line managers which means that increased virtual 1-2-1’s may be misinterpreted as being intrusive especially as technology and metrics are being analysed. During this pandemic grievances are increasing and line managers are having to adapt and upskill at speed. Normal day to day activities such as catching up with a work colleague at the coffee machine and physically seeing people is going to affect the way mangers recognise that staff are struggling or have work issues. Issues will be magnified as people can’t resolve them through a face to face “chat” and the feeling of isolation may start to be an issue.
An employer’s duty of care and liability towards employees are not waived because they are now working from home. Employers should bear in mind that they can be vicariously liable for the actions of a fellow employee for any unwanted conduct which is related to a protected characteristic committed in the ‘course of employment’. This is true even when the employer is in no sense at fault. With this in mind, home working can bring about its own challenges and I anticipate a raise in tribunal claims which will include claims for bullying, harassment and discrimination following this extended period of remote working.
It is understandable that when working from home businesses will need to call or email employees and colleagues on a more regular basis than if you were working with them in the same office. However, it is important to determine the difference between checking up on employees a couple of times a day/monitoring all of them to a reasonable and equal level as opposed to a level of surveillance and micromanaging of one member of staff beyond the others. The latter can amount to harassment if this conduct is considered to relate to a protected characteristic.
Examples of this could include, scrutinising a female employee’s work more closely due to a sexist bias or emailing an older employee constantly because they are thought to be incapable of completing the work because of their age or technical ability. It can also take the form of neglecting to contact employees, not inviting them to virtual meetings or directly ignoring them which could be an implied breach of trust and confidence. In an Employment Appeal Tribunal case involving the University of Hertfordshire, it was suggested that attempts to micromanage an employee’s work from home is capable of amounting to unlawful discrimination or victimisation.
Whilst it is still encouraged for employers to provide their support to employees through regular catch ups, video-calls, internal and external resources etc, it is important to bear in mind that it is possible to take a step too far, regardless of the fact that such conduct is taking place outside of the office. I have seen some great ideas such as quizzes, workouts and even virtual cooking classes that businesses have planned. However again some employees may just want to switch off and see this as an extension of work thereby feeling obliged to attend.
As working from home policies are being adapted, now is the time to ensure that managers are trained on how to implement the policy. This training should ensure the policy is not only communicated effectively but it is fair and consistently applied so that all employees are aware of the behaviour expected of them. Clearly, advances in technology and working from home are here to stay and managers need to learn to embrace this whilst avoiding the “Big Brother” surveillance culture.
Heyma Holmes is a Partner at BPE and is at the forefront of assisting businesses during this pandemic. To discuss this or any other employment matter in more detail, please contact Heyma via email firstname.lastname@example.org
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