PODCAST

Five new challenges with returns to work

Employment Law Focus

Returns to work have always been fraught with challenges, but with the advent of hybrid and remote working, the traditional toolkit may no longer be fit for purpose.

Whether employees are returning after a long period of absence, returning to the physical workplace after a period of working remotely, or starting a new job, HR and legal teams need to understand both the employment law and health and safety risks and what’s changed.

We outline five new challenges including:

Occupational stress
Supervision and performance management
Personal injury
Training and career development
Long Covid

Recurring themes include:

The risk that employers underestimate their legal obligations;
The need to think about the individual employee and take a tailored approach;
The importance of effective employee communications; and
Maintaining a complete record of steps taken to support employees and minimise health and safety and other risks. Our listener question addresses the timely topic of mandatory vaccinations at work, and what we’ve been seeing and advising clients.

Useful link: HSE guidance on home working

Thanks for listening and please let us know if you’re enjoying the podcast or if there’s a topic or question you’d like us to cover. You can email emplawpodcast@tlt.com or tweet us @TLT_Employment or use the hashtag #TLTEmploymentPodcast

Transcription

Jonathan Rennie:

Welcome to TLT's Employment Law Focus. I'm Jonathan Rennie; I'm joined today by Duncan Reed. Duncan's a partner in our regulatory compliance team with a special interest in health and safety matters. Today, we're going to be looking at five new challenges with managing the return to work.

We know that returns to work have always been fraught with risk for employers, but this is about to get a lot more challenging now that people are returning to a hybrid or a virtual working environment, and now that we're living with Covid in all it shapes and forms.

Duncan, really good to have you along with us today.

Duncan Reed:

Yeah, it's great to be on the podcast today, Jonathan. And it's a really timely moment to be discussing these issues, with the Omicron variant, so I'm really happy to be here.

Jonathan Rennie:

Brilliant. Duncan and I have worked together on Covid return to work advice in recent times, and really his expertise is in helping with the regulatory dimension and pointing out how that at times overlaps with employment law, and also at other times it creates additional or different obligations for employers.

Duncan Reed:

Yeah, it's such an interesting time. Companies can look back to the first restrictions that were put in place over 18 months ago now and say, "Didn't we do well in getting the workforce working from home, we managed to procedurally do everything we needed to do as a function in the workforce”. Then we had a period of starting to work back in the office, we have this hybrid working position at the moment. And in a way, because we've had this reversion back to work at home for some sectors and some organisations, this is the additional requirement for organisations to look at, "Am I meeting my legal requirements? What do I need to do to support my workforce in these, quite frankly, quite difficult times?"

Jonathan Rennie:

Yeah. And I think before we dive into the main section today on the five challenges, it’s worth just acknowledging that returning to work captures a number of different situations. So you might have people coming back from a period out of the business, for sickness, maternity, even furlough in recent times. Then you might have the individuals who are Covid returners, if you want to call them that.

And then of course, you have that real challenge for new joiners, people that have given up their laptop on a Friday to their old employer and then picked up a new laptop on the Monday and all of the challenges that presents around getting to know people, getting to build relationships, and the new ways of working.

So, firstly, we're going to talk about occupational stress. Duncan, what are your stress levels like at the moment?

Duncan Reed:

They're okay, I would say actually. I'm feeling pretty relaxed in a nice, warm room, it feels quite snug in here and all soundproofed, and I'm doing something that I quite like.

Jonathan Rennie:

Well, that's good you're safe and well. In asking that question, which is totally unscripted, it does immediately occur to me that we don't ask each other that question enough and we know that we should. And then we're sometimes not sure what to follow up with if the answer isn't that somebody's doing particularly well.

Listen, we know all the statistics about stress, we know also with remote working that there are risks of things like loneliness, depression, paranoia, all these horrible words. And with hybrid working, there could even be reintegration anxiety. I think, Duncan, you have some thinking around the actual terminology of stress and the understanding of that.

Duncan Reed:

Absolutely. I think this is where it is acknowledged that there is a fairly major challenge for organisations in how they deal with this. And it will depend a lot on what your workforce looks like, where are the roles that you've seen more numbers of employees suffering from clinically proven stress or anxiety. Because those are probably the roles that you need to look at paying a little bit more attention to your individuals and the employees in those roles.

Now, the legal position is fairly clear in terms of dealing with stress in the workplace. If, as an employer, you are notified or you are aware that an individual is suffering from stress, there's a requirement to carry out a stress risk assessment in relation to that individual.

Now, believe it or not, a lot of organisations that I work with do not end up getting there in relation to carrying out the stress risk assessment. Someone will be referred perhaps to occupational health because of a medically defined incident of stress or anxiety and a period off work. But what you won't often see is a real examination and a pause for thought around what adjustments can be made to their role, and then also how to monitor those going forward, because there really is a legal requirement. And that is where there's probably a greater onus on organisations than they perceive there to actually be.

Jonathan Rennie:

Yeah, I think for me, sometimes I get the impression that organisations look at the causation of the stress and probably think the responsibility might lie elsewhere. So, for example, an individual might be having stress at home, they might have financial issues. I think what you're saying, Duncan, and correct me if I'm wrong is, "Well, listen, there might be a number of factors, but the employer really needs to step up and take some responsibility and have an understanding of how much the employment is contributing to that position."

Duncan Reed:

Yeah, absolutely. It goes back to having a suitable and sufficient stress risk assessment in place for each employee, which means looking at someone as an individual rather than just purely as their role within the organisation and taking on board measures that perhaps an occupational health assessment has identified, making sure that those are actually implemented, and then monitoring to see whether it's working because there is certainly a stigma associated to stress in the workplace.

There's this whole sort of stiff upper lip mentality in some sectors where people don't want to draw attention to it. They're concerned about their future role or their future employability. So doing a bit more digging to find out what are the issues, what are the trigger issues for this individual, and what can we do to support them isn't just a nice to have actually. It's really a compliance point in relation to the legal obligations around this area.

Jonathan Rennie:

I think sometimes HR practitioners maybe find themselves at the forefront of these stress risk assessments and then possibly don't always have the resource to sit down and consult and chat individuals through them. And I think that's great that we're able to talk about the two different aspects of employment law and the health and safety obligations. I'm taking then your position is that stress risk assessment is going beyond just filling out a tick box or an assessment.

Duncan Reed:

Yeah. In order to be suitable and sufficient, which is the legal terminology used in the management of health and safety at work regs, you can't just have an off-the-peg written risk assessment that you're just going to fill in someone's name on. You really do need to take into account these factors that are by definition individual to the relevant employee involved. There's a lot of resource available. HSE have ramped up the information available and the support available on their website. It's one of their focus areas in relation to dealing with the risks to employees because of what a widespread issue it can be.

Jonathan Rennie:

I think they have guidance now on home workers. And with my employment hat on, some of these seem common sense, Duncan, but I'm sure you can help me by adding into them. I mean, the first of which, and this is what we hear a lot in employment issues is, well, listen, talk openly with staff about the possibility of them becoming too stressed or mentally unwell, which maybe goes to what you're saying.

Duncan Reed:

Yeah. Employee assistance programs, other avenues of support are now seen as a given in certain sectors, but in other sectors, it's time to catch up and have a look at what's available.

Jonathan Rennie:

I think from an employee communications perspective, some obvious neat ones are keeping individuals updated on what's happening so that they feel involved and reassured, and having regular keep in touch meetings or calls so they can share any concerns. I think it’s very easy to say these things, but I think we know with Zoom and Teams that where we’re facing people on a screen, that also in some ways presents a barrier to having that hard conversation, because you're having to really look at someone right face-to-face. And where we're getting to – and we're repeating the point – is really taking account of the needs of the individual, having these more bespoke arrangements and a more tailored approach.

I think then, it's really best to have these conversations with your staff at the earliest stage and not to try and engage in an assessment of whether there's a risk around constructive or actual knowledge of a mental health condition. Duncan, from a regulatory angle, is there anything that you think should be added in

Duncan Reed:

In terms of looking at the risk of this, we know that there haven't been any successful prosecutions by the HSE in relation to failing to comply with obligations under the Health and Safety at Work Act and other relevant legislation around stress, because it is a difficult one to prove beyond a reasonable doubt to the criminal standard of proof. My top tips would be really to retain as much evidence as you can do in relation to what is on offer to employees, evidence that that's been communicated to the relevant employee. Make sure that there are detailed notes of any meetings and what external support has been offered in terms of occupational health.

There can be difficulties around data protection, so just make sure that even if you aren't able to access the occupational health reports themselves, you're able to get hold of the recommendations because those are the key areas that you need to share within the business to make sure that those are implemented.

Preliminary requests for information, or issues around potential claims arising in this area are quite common, in fact, so you need to make sure that you involve your legal team as soon as there is any sort of notion of a claim or any external investigation such as HSE involvement, local authority involvement, or even a police involvement.

Jonathan Rennie:

So we're now going to look at supervision and performance management. I think we know that remote management and supervision is going to be very different with people being sometimes in the office, sometimes at home.

An issue I spotted is perhaps not knowing somebody's preferred working style or their preferred supervision style. So I remember many years ago, an organisation I worked in did the Myers–Briggs test to establish people's preferred learning style. And mine was an active style, but of course, other people have different styles – you might have problem solvers, solution finders. And some individuals prefer to work on their own, others being more involved in teamwork.

I'm not entirely convinced now that organisations are alert to that, given everything that's going on, and that there's a risk that organisations take a one-size-fits-all approach – the idea that we're all in this pandemic experiment together, and let's get on with it, and losing some of that sense that people work in different ways.

I think organisations need to ask themselves what they need to know in order to make a credible assessment of how somebody's doing and performing at work, so that they can act upon it in a way that's fair to that employee and others – which again is this increased focus on tailored or bespoke management of staff.

Duncan Reed:

Yeah, absolutely. I think in terms of looking at this, you can't ignore the stress and/or mental health angle, because a change in performance is obviously an indicator of stress or anxiety. So almost that's one of the questions that you should be asking really, or trying to find out, or trying to roll out actually as an employer, "What's causing this change in performance?" And then adapting your management and supervision procedures accordingly.

There can be a lot of touchpoints within a business, so colleague, line manager, team leader, HR, mental health champion, the list goes on. And actually, the way in which some organisations within some sectors work is a lot more holistic. They won't just have a single touchpoint with a line manager, they'll have various touchpoints. And it's really looking at how do employers discharge those duties in the new hybrid working world. So, there's an expectation that employees are going to be open around any particular difficulties, including technical difficulties that they might have with regard to a change in working circumstance. So if they're suddenly back to working at home and what worked for them last time round isn't working now because, I don't know, one of their kids is at a different school, so they've got to pick them up at a different time.

Jonathan Rennie:

I think in that regard for me, it's the task of HR, if I can describe it as such, to build more developed competency frameworks and to bring them to life, not just as a paper exercise, but it’s just a different toolkit, isn't it? And some of those tools might be more useful at different times. One of the ones that I like and is a softer approach, and some of our HR clients are reactivating, is mentoring and buddy schemes for staff wellbeing.

Duncan Reed:

Absolutely. And having those additional methods of communication and touchpoints within the business is only going to help reduce the overall risk.

Jonathan Rennie:

We're now going to look at personal injury. I'm not putting this all on you, Duncan, but it is more of your area of expertise. I think employment lawyers sometimes find themselves managing employment tribunals knowing that there are personal injury claims running at the same time, and these cases can get complicated very quickly.

So, for example, in a scenario of, let's just say, somebody that's overworking, there's a discrimination component, there's potentially some form of breakdown or psychiatric issue at work, then there can be insurance angles, different forums. And of course, then as an employment lawyer, you're managing litigation on multiple fronts, thinking how it all fits together. But, Duncan, what are your thoughts around where we are in return to work and some of the potential personal injury issues?

Duncan Reed:

From a personal injury perspective, I think primarily those real risks areas in terms of Covid claims will come in the health sector, education, people who were significantly exposed as a result of their role essentially. What I would say is that those risks are ongoing, because with the Omicron variant that we have, there are some unknowns in terms of what the risks actually are. So keeping on reviewing the Covid risk assessment that you have in place as an organisation, taking account of those changes, is going to reduce the overall risk of person injury claims arising from Covid.

We've seen an uptick in other claims, because perhaps people have taken their eye off the ball because they've been focusing too much on Covid. Unfortunately for employers out there, there's not much good news here in relation to the claims landscape. We've seen examples of claims being brought as a result of failing to adequately train new employees, failing to reacquaint returning employees sufficiently with their duties, giving existing employees additional responsibilities without providing adequate training.

But what I would say is that, going back to the point that I mentioned earlier, it's really important to document the procedures and the discussions that you have with individual employees. Depending upon which sector you're operating in, go back to the government guidance on safe working. It's all been updated as of the last couple of days, referencing the working from home requirement. And then in turn, amend the Covid risk assessment as a result of any changes in the guidance, because that step is one that does need to be taken.

Because really when you're looking at risks that employees might be exposed to, you're looking back through a lens and you're looking at, "What happened when, and what were we doing to mitigate or control those risks as an organisation?" And if you haven't got an updated Covid risk assessment in place during a period where an employee is alleging that they were either exposed unnecessarily, or there was a greater risk of exposure, then that will prove difficult for you as an employer in terms of looking at adequately defending these claims.

Jonathan Rennie:

Yeah. And I think then organisations default into that scenario of trying to argue, "Well, we were doing the best that we could with the knowledge that we had," but absent any kind of reporting or audit trail, or focus on the compliance, that becomes sometimes a scenario where lawyers have to come up with creative arguments or explanations knowing that it's going to be really difficult to make those stick.

Duncan Reed:

There was an expectation at the beginning of the pandemic that the HSE might be coming around and looking at prosecuting organisations who hadn't implemented the Covid safety working measures. On the whole, that hasn't happened. At the end of the day, people want to protect their employees. Of course, they do. So it's about being sensible and prioritising these things.

Jonathan Rennie:

Okay. So we're going to turn now to training and career development, which is obviously a huge and enormous challenge. And of course, for example, more junior members of staff that have possibly just joined an organisation will have a legitimate expectation that they will be trained and have their career developed, whereas potentially individuals at a more senior level might be navigating all these difficulties that we've talked about rather than being focused on where their staff are at and where their staff want to get it to.

We know from reading in the press and clients’ experience that... I think it was April 2021 was called the month of ‘The Great Resignation’, and that many of our clients are finding recruitment really, really tough at the moment. So it therefore seems logical and sensible, and indeed that there is a strong business case for developing staff and building the talent pool within organisations.

Duncan Reed:

I think that's right, definitely. Because on the training requirement, this does have both the job satisfaction and improvement point for the employee, but for the employer, sometimes it also has a regulatory angle – in terms of fulfilling the function of ensuring that an employee is aware of their health and safety obligations, for example, in a workplace; how to use specialist kit and equipment, how to treat others, and other relevant policies and procedures that need to be communicated to employees.

Jonathan Rennie:

I think from my experience and general reading in this area, we know that the world of work was changing pre-Covid anyway. There's often a statistic quoted that 80% of the jobs that will exist in the next ten years will be new jobs. Perhaps then when it comes to training and career development, the real focus for organisations is perhaps carrying out some form of talent audit, identifying skill sets, and focusing on how to develop people from that. I think that then enables better resourcing potentially. And whilst it's a little bit academic, it's perhaps more of a way of developing your organisation from within and therefore overcoming some of these recruitment challenges, which we're all facing.

Duncan Reed:

That's right. I think from a regulatory perspective, one of the first things I would do as a defence lawyer post-incident is look back and see, "Are the training records up to date? Has everybody done their refresher training?" If those weren't up to date or there were gaps in the training records, then those are something that would certainly be identified as a legal risk.

Jonathan Rennie:

So the last one that we're going to talk about in terms of the challenges is long Covid. Being 20+ months on from the start of the pandemic, the UK has reported over 10 million Covid cases. We know about the symptoms, but we're often asked the question as employment lawyers whether long Covid would be a disability under the Equality Act definition.

Many of you will know that definition, but a disability under the Equality Act is where someone has a physical or a mental impairment, and the impairment has a substantial and long-term adverse impact on their ability to carry out normal day-to-day activities, with it generally being accepted that long-term means the condition has lasted or is likely to last for more than twelve months.

So, whilst long Covid is still relatively new and we don't actually know the full effects of it, sufferers have reported long lasting and in certain cases debilitating symptoms that have impacted their daily lives. And so I think on balance, there's a good chance that somebody suffering with long Covid would fall under the auspices of the Equality Act.

Duncan Reed:

Yeah, that's right. We saw in the report published in June earlier this year that the Trade Union Congress made calls for long Covid to be classified as a deemed disability, which then means that sufferers are given automatic protection from discrimination. The government hasn't indicated what it's planning to do yet. But depending upon the individual's symptoms and medical evidence, an employment tribunal could find that individuals are disabled for the purposes of the Equality Act, and we are waiting for the first of those judgements.

Jonathan Rennie:

Yeah, I think as well we need to realise at this point that an employment tribunal will be determining matters whereby the judge or the panel members might themselves have been impacted by Covid, or their family. From a moral and practical point of view, that there could be significant sympathy for those individuals that have faced managing long Covid.

Well, clearly the tips in this regard aren't terribly different for any other type of disability. And so firstly, you would want to engage with the employee experiencing the symptoms and discuss how best to support them. And that might involve obtaining an occupational health assessment. You might also consider any reasonable adjustments in consultation with the individual, so a phased return to work, changes to working hours, allowing more flexible working.

There is some suggestion that particular groups might have a greater tendency to suffer from long Covid. And if that was the case, those individuals with those particular protected characteristics might have additional claims.

Duncan Reed:

I think that's right. And then we also come back to everybody's favourite, which is the personal injury claim risk, which is heightened for long Covid. And the reason for that is essentially because the symptoms are longer and impact more on an individual's ability to carry out their role. So there's an argument that they could be ultimately asking for a special damages award if they're able to demonstrate on the balance of probabilities that they contracted Covid in the workplace in the first place.

I think these issues really go hand in hand with involving external assessment as soon as possible, to support the individual with a sometimes probably phased return to the workplace, or a review and analysis of what their role should be going forward. And there have been calls for the government to include long Covid as a specific occupational disease in the UK for key workers.

Jonathan Rennie:

What are examples of current occupational diseases that are so defined in the UK?

Duncan Reed:

So you would have things like asbestos exposure, mesothelioma; any other of the breathing difficulty disorders associated with exposure to chemicals; musculoskeletal disorders as well, associated with bad working and posture. Quite significant actually in terms of the risk that they present to workers, so classing long Covid in that category I think would be quite a significant step.

Jonathan Rennie:

We have a listener question, and it's one that we've been asked quite a bit actually. It's about this idea of ‘No jab, no job’ policies, and how does the law deal with that.

Interestingly, on 1 December, the European Commission president, Ursula von der Leyen, said the EU must consider mandatory vaccination in response to the spread of the highly contagious Omicron variant. So this is a timely question to answer.

Duncan Reed:

We've seen typically some American companies taking the lead in relation to the mandatory requirement for vaccinations for people returning to their offices. So, Amex, BlackRock, Facebook, McDonald's. I suspect some of that will be driven by their insurers, and a desire and a requirement to reduce the risk as far as possible in relation to people contracting Covid in the workplace.

Jonathan Rennie:

In my experience in advising on this so far, I'm aware, for example, in the care home sector in England & Wales, the government has made it mandatory for staff to be fully vaccinated. That regulatory position in that sector is confirmed in specific legislation. And where that gets to for employers is, it essentially legitimises fair dismissal processes within that sector provided a fair process is followed.

So in other words, care homes can say that, "Well, if we didn't follow that government legislation, we would risk closure, and therefore we have a significant business reason for following that process and requiring our employees to be vaccinated." So, at the moment, that's quite a niche sector, but of course it may develop.

I think it goes without saying that Duncan and I are aware of the human rights issues, consent issues, the potential discrimination issues, which could be religious, disability status, pregnancy status, etc. But I think the care home sector in England & Wales does show that there's the potentiality certainly for legislation to develop.

Jonathan Rennie:

Thank you very much to everybody for listening. We hope you found this episode useful and that you're enjoying our topics. Send us a message if there's anything you'd like us to cover, or if you have any feedback or listener questions. You're able to email us at emplawpodcast@tlt.com, or you can tweet us. Our handle is @TLT_Employment, and you can use #TLTemploymentpodcast. Please do leave us a review if you're enjoying the podcast and think others should give it a listen. And don't forget, you can subscribe on your podcast app so that you know when we're back again.

Jonathan Rennie:

The information in this podcast is for general guidance only and represents our understanding of the relevant law and practice at the time of recording. We recommend you seek specific advice for specific cases. Please visit our website for our full terms and conditions.

Date published

20 December 2021