Emerging HR Challenges

Coronavirus vaccine

Three vaccines for Covid-19 have been approved in the UK and the government is currently undertaking a substantial vaccination program, aiming to have all adults offered a vaccine by the autumn. With vaccines being touted as our route out of the pandemic, but remaining optional, an important question employers are asking is whether they can try to enforce staff receiving a vaccine. Here are some key points on this issue below:

• There may be some industry sectors that may implement a requirement for its staff to have the vaccine for safety reasons. This may apply to operators in the care sector where maintaining social distancing and adhering to other safety measures is not possible.
• In workplaces that do not involve care, such as offices or retail, it may be considerably more difficult to try and put in place such a restriction because of the ability to have employees working from, or maintain social distancing in other ways to mitigate the risk.
• There could also be a number of reasons why employees do not want to take the vaccine; they may have been advised not to due to a pre-existing medical condition, or due to their religious beliefs.
• The most appropriate course of action for employers is to encourage staff to have the vaccine through awareness campaigns, focusing on the benefits for doing so.
• Employees could also be encouraged to make an informed decision about having the vaccine by reading information from official sources, alongside a cautionary note to verify the source of their reading matter due to the existence of uncertified information.
• Employees who refuse to the vaccine should be addressed individually and managed according to the reason for refusal.
• It may be reasonable in some cases to dismiss employees for failing to have the vaccine but that will be dependent on the specific facts such as whether it was reasonable for employers to require the vaccine in the first place, whether the refusal was reasonable, what else could have been done to keep them in employment, the procedure used etc.

Testing employees for coronavirus

Some companies may be considering providing opportunity for employees to be tested before they go into work every day through rapid, otherwise known as lateral flow tests, as these can produce results in a few minutes. Here are some key points to bear in mind:

• Provides reassurance to employees that they are not asymptomatic so is likely to be well received.• Staff cannot generally not be required to have a test unless there is a comprehensive clause in the contract. This is not likely though – you can’t rely on an existing clauses for drug testing.
• Mandatory testing would be a change to terms and conditions and require consultation and agreement.
• Dismissal for failing to agree would risk an unfair dismissal and depend a lot on whether it was a reasonable request in the first place and whether the employer addressed the reason for refusal fairly.
• Better to enter into communication with employees to explain why you are running the exercise and what the benefits are, and address individual worries.
• Timing of testing should also be considered. To encourage take up, likely that having a test during working time will help achieve the aim of as many tests and possible, but is not essential.
• Employers will need to obtain the consent of the employee to the testing to evidence that the employee has agreed.
• Positive tests should be treated with confidentiality and the employer’s process for those who have working closely to the employee in question should be implemented.

Homeworking

Currently, guidance in England is that individuals should only leave their home for work if it is not reasonable for them to do their job at home. In Scotland and Wales, people must work from home if they can. This presents a number of HR challenges to companies, even if they have previously had staff working from home.

• In reality, those who were working at home during the first lockdown should be working from home now. This has been expressly stated by Scotland’s First Minister.
• The definition of who should be working at home has changed several times in England (though not in Scotland/Wales – it’s always been (since March 2020) to work from home where you can).
• This means you may have had employees coming back to work and then going back home again.
• Employees (and employers) now have the experience of what it means to work from home and whilst many employees prefer it, it may not suit everyone.
• Some may resist working from home again because it had a detrimental effect on their mental health, they felt isolated etc.
• You may need to balance employees’ individual needs with Govt guidance but in all cases, workplaces should remain COVID-secure while employees are there.
• Maintain regular contact with homeworkers, such as holding daily team meetings, in order to discuss workload and make sure they are feeling okay about their current situation. This will also give them opportunity to interact and socialise with their colleagues.
• Encourage staff to come forward about any concerns they may be having – it is a lot harder to monitor how staff are feeling in general when you are not with them every day.
• Employees who prefer to work from home may resist coming back to the workplace when this is possible in the future and you may get a lot of flexible working requests.
• You will determine your general view on this and it may be difficult to turn down requests now, given the real life experience you will have and in many cases it will not be a negative experience.
• If there are negative experiences, it may be worth noting them so you can refer to them in the future where necessary

Requests to be furloughed

The Job Retention (furlough) Scheme remains an option for all eligible businesses and is currently expected to be in place until the end of April 2021. Employees may therefore request to be furloughed. Here is how to respond to this:

• Employers are in charge of who is placed on furlough; there is no right to be furloughed, or even a right to request. Govt guidance is clear that furlough is at the employer’s discretion.
• It is to be used to help keep employees with a business, not as a benefit that someone has a right to
• Offering 100% pay by topping up may make it be seen as a benefit.
• The furlough scheme should only be used when the business has been severely affected by coronavirus, which not all businesses may be able to demonstrate.
• Employees should be informed why they are not to be furloughed, such as their role being deemed crucial to the continuation of business at this time.
• Consider furlough rotation amongst a team so that the impact/benefit is spread around.

Childcare and school closures

Schools are closed across Britain during January and it is currently unclear when they will open in any of the nations (nurseries are still open in England and Wales). Currently, Scotland schools/nurseries will stay closed until mid-February (review due on 2^nd Feb). Staff may therefore find themselves facing childcaring issues, and need to be absent from work. Here are some options to explore:

• Time off for dependants: working parents have the right to unpaid time off to deal with emergencies involving a dependant (such as a child). This will be appropriate for the start of the occurrence due to its nature; it’s to deal with the emergency and make alternative arrangements. This is usually no more than two days per instance.
• Consider homeworking, flexible working, temporarily moving to another job so the employee can work from home.
• Can be furloughed but circumstances must meet the exceptional purpose of the Job Retention Scheme which is to help employers who are severely affected by coronavirus.

Potential claims and risks

This is an uncharted area for HR, meaning mismanagement carries with it a number of risks.

• Unfair dismissal, including constructive dismissal, if employees are unfairly disciplined and/or dismissed due to refusing to take a Covid test or get a vaccine. If such a requirement is going to be introduced, employers should be able to clearly justify why this is necessary for the employee’s role and their company as a whole.
• Discrimination if an individual feels they are poorly treated due to non-compliance with the above in comparison with someone who does not share their protected characteristic.
• Discrimination in relation to childcaring issues if handled poorly.
• Furlough fraud – are staff working while they’re recorded as being on furlough? That’s furlough fraud.
• Failing to let staff self-isolate
• Along with any civil claims, you could also face COVID-based accusations from your staff. This could lead to a tribunal case – not to mention a poor team morale – so it’s something you want to avoid.
• Unfair dismissal – not considering furlough as an alternative to redundancy.