I started 2020 talking about the Good Work Plan and how employment law changes from April would be the biggest for years. Little did I know what 2020 would really bring.
By April extension of IR35 had been delayed until 2021 and the nationwide lockdown was forcing changes to business and working practices. Ways of working that had been unthinkable suddenly became the method of survival and are being considered as the norm.
The changes to employment legislation came in with little fanfare.
So, what has 2020 changed?
The business environment has demanded changes. Some will be permanent, others will evolve over time. Some will open opportunities that previously didn’t seem possible.
Self-isolation and shielding are the new words of 2020 that Sickness absence policies will need to consider. The risk of spreading Coronavirus is so great there are a variety of situations where people are asked to stay at home and isolate. Not coming to work in case you are sick is definitely a new concept.
People reporting for work when they should be in quarantine following a trip abroad or have been advised to self-isolate make those decisions on financial grounds. By doing so they increase the risk of you losing other staff to quarantine and possibly the temporary closure of your business.
It’s not all bad news. I’ve also seen many questioning a sudden reduction in sickness absence from home workers. The question often comes from a fear that sickness isn’t being recorded. Homeworkers generally have lower rates of sickness absence.
A key question is - how sick is too sick to work? We all have an individual answer which will depend on our circumstances. When we have to travel to work, get dressed, face people and put on our professional face, we may consider ourselves too sick to work when we can’t face these things. If we’re working from home, we can work in our pajamas, on the sofa. Suddenly what before was too sick to work now becomes “I might not have my most productive day ever but I can at least get the urgent bits done”.
Meeting less people and not using public transport both reduce our exposure to what makes us ill. Wearing masks and increased handwashing to stop coronavirus will have a knock on effect for other viruses. Additionally, those working from home have increased time to sleep, exercise and eat healthy food, are often happier at work and more engaged, all of which also reduce sickness.
The impact of the “work from home if possible” instruction has been felt differently across the economy, just as the more recent “get back to work” campaign. There are of course big differences between working from home, being at home due to furlough and being at home due to shielding. Whether you are continuing homeworking on a temporary basis, permanent basis or requiring people back into the office or a mix of them - it is likely there will be changes to working practices.
The decision as to whether homeworking or remote working is right for your business is unique to your business. It will depend on the type of role, whether the work can be done from home. It may also be influenced by your competitors - the best people always have options about who they work for.
If you are or have already brought people back into the office, how have work practices changed? Start and finish times staggered, bubbles or social distancing - ensure people are aware of the new rules. If you have had people working from home or have people still struggling with childcare, you may find an increase in flexible working requests. Consider how you will respond to these and ensure you follow the legal requirements for dealing with such a request.
If working from home is becoming long term or permanent then consider how this impacts the employment relationship, where rules and processes need to be changed to reflect new working practices. Things to consider might include:
- How performance will be managed?
- Does working from home mean having to be “at home” or is it “remote, work anywhere”?
- Does remote working also mean flexibility around working times? To what extent?
- Will you provide an internet connection or expect employees to provide it?
- What equipment will you provide? Many have been working through the pandemic with laptops when in an office they would have had a monitor and keyboard.
- You are responsible for the health and safety of remote workers, risk assessments must be carried out.
- What notice is required to insist an employee attends the office?
- Who will pay travel costs?
- Is there still an office and can employees choose to attend it?
- How will you ensure that equipment, data and confidentiality is protected?
This might look a long list but you have either made decisions under different circumstances or they were solved through custom and practice and have become contractual by chance rather than design. Now is a great time to reflect on those decisions and make new decisions that meet the needs of your business.
There may be other implications around your brand and how you’re presented outwards. Sales meetings may have moved online. The now empty office which you carefully designed to give a great first impression to customers may now suggest you are closed. Your “front door” may now be on line so how do you create the right impression. This may require training to ensure your people are using technology in the best way possible to achieve the goal you want.
A shift to remote working or compliance with new health and safety rules may necessitate a revised contract of employment. Take control of those changes, make decisions, agree the new rules and put them into writing.
Health and Safety
Many HR practitioners have found health and safety increasingly falling into their role in 2020. Without doubt new health and safety rules have been introduced into every business. Offices that have always comfortably felt relatively low risk suddenly require a lot more thought when it comes to health and safety.
Ensure the right support is in place to those with new health and safety responsibilities. Keep talking to your people who may have their own and personal concerns about the safety of being at work.
News of failure to enforce social distancing in a DWP office shows the Health and Safety Executive (HSE) will take breaches in relation to Coronavirus seriously. It’s not just about having the risk assessment but also enforcing the new rules. Ensure people have had sufficient training and information, then taking disciplinary action for breaches of rules.
Employment Law changes in 2020
Statement of Particulars
Since 6th April employers have been required to supply a statement of particulars to all employees and workers by the end of day one of employment, regardless of length of service.
- The list of information required in the statement has been extended to include:
- Details of other types of paid leave - e.g. maternity and paternity leave
- Duration and conditions of any probationary period
- All remuneration (not just pay) both in cash and kind
- Which specific days and times workers are required to work
- Training provided or required by the employer which they will not bear the cost of
Whilst you may not have to issue the statement until the end of day one, ideally it should be issued prior to starting at the point of offer - this ensures your new recruit knows exactly what they are signing up for.
The Parental Bereavement (Pay and Leave) Act came into force in April. It gives primary carers (not just parents) the right to two weeks leave following the loss of a child under the age of 18, or a stillbirth after 24 weeks of pregnancy. This is paid leave for employees with at least 26 weeks’ continuous service.
Over recent years a steady stream of case law has changed the way holiday pay is calculated. In most cases it should include overtime, commission and other types of variable pay.
Following these cases the Employment Rights Act has been amended to change the reference period for determining an average week’s pay. From 6th April a week’s pay has been the average of pay over the previous 52 weeks.
Don’t forget that weeks without work, including those on furlough, are not included in the average.
“break of service” period
From April the gap required to break the continuity of service has increased to four weeks, making it easier for those with irregular working patterns to accumulate continuity of service.
2020 hasn’t been the year any of us predicted, the impact on business has been huge and varied. We still can’t be sure of the future, whether there will be further local or even national lockdowns or local outbreaks and school closures - all of which will impact business. The world is changing, how and where we spend our money is changing.
Now is the time to get the foundations right, make decisions, formalise new working practices. It’s crucial that what you do now focuses on business continuity, know what you can do to keep going through turbulent and changing times. Keep flexibility, you may need to make changes again to adapt to this changing world. It may seem counterintuitive but when done right, formalising employment practices and flexibility go hand in hand.
Consider not only the practicalities of people continuing to work but how you keep your business open when some are forced to close, how you continue to promote and market your business or how you adapt to a changing economy.
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Article last updated: 11 November 2020
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