Employment Law Coffee Break | Covid-19 update, managing workplace conflict and are whistleblowing reforms on the cards?
Published on 21st May 2021
Welcome to our Employment Law Coffee Break where we look at the latest developments impacting on UK employers.
Acas guidance for businesses reopening
In conjunction with England hitting stage 3 of the road out of lockdown on 17 May, Acas has published tips for businesses reopening which include ensuring that the workplace is Covid-secure and completing a Covid-19 risk assessment, together with ensuring staff are involved in decision-making and keeping them informed of changes. The guidance emphasises the need for employers to continue to tailor management and support to individual workers and health and wellbeing remains a continuing concern. Acas also reminds employers to comply with their obligations to pay the national minimum wage and to allow workers to take accrued holiday entitlement. With the summer holiday season approaching and accommodation re-opening employers should consider how holiday requests will be managed to meet operational requirements while complying with the statutory working time rules. Key issues to consider include how requests will be fairly prioritised, what arrangements will apply where an employee is unable to travel home due to Covid-19 restrictions and how any requirement to quarantine on a return from overseas will be managed.
Working from home
The government has been reviewing social distancing measures and the outcome of that review is expected soon. There is increasing optimism that the government's current work from home guidance (which requires employees to work from home where they can but recognises that for workers "facing mental or physical health difficulties, or those with a particularly challenging home working environment", this may not be appropriate) will end on 21 June 2021, but with concerns over the impact of Covid-19 variants this remains subject to "keeping the virus down". Many employers are now actively considering the working arrangements which will apply and the short and long term legal and practical considerations these give rise to – our interactive tool highlights the key legal risks. Our latest webinar in the "Dipping into Data" series looks specifically at the data protection issues for HR arising from the move to flexible and hybrid working, processing of health-related data and increased use of third party tools and technologies (click here to access the recording).
The vaccination programme has played a pivotal role in bringing England out of lockdown and as more age groups are brought within scope, we have been talking to employers about how they can continue to encourage vaccine take-up, for example by making available the latest vaccine health information, listening to staff who may have concerns and allowing paid time off work to attend a vaccination appointment. The government has announced that some of the UK's biggest employers have signed a pledge to promote a positive safety message and allow employees to get their vaccine during working hours in a bid to improve vaccine uptake. A poll by the British Chambers of Commerce has found that 78% of employers have no plans to implement vaccine certification for employees returning to the office.
Coronavirus Job Retention Scheme
The Coronavirus Job Retention Scheme currently looks set to close on 30 September 2021. Employers using the scheme (which, subject to compliance with the applicable rules, currently reimburses an employer the lower of 80% of salary or £2,500 a month) will need to factor in that from July 2021 support under the scheme will start tapering. The scheme will cover the lower of 70% of salary or £2,187.50 in July 2021 and 60% of salary or £1,875 in August and September 2021. Employers are obliged to make up the shortfall so that an employee continues to receive the lower of 80% of salary or £2,500 a month, on top of the existing obligation to make employer national insurance contributions and pension scheme contributions on the grant. Employers relying on support from the scheme will also need to give active consideration to bringing staff back from furlough as businesses reopen and whether, when support under the scheme ends, restructuring or redundancies may be necessary. Please contact your usual Osborne Clarke contact to discuss these issues further.
Right to work checks
As reported previously, the temporary Covid-19 adjusted right to work check measures will now end on 20 June 2021 and not 16 May 2021 as previously announced by the government. No retrospective checks on employees who had a Covid-19 adjusted check will be required.
Managing conflict in the workplace: how much is conflict costing your business and practical observations for managing it
With conflict scenarios predicted to increase as we emerge from the Covid-19 pandemic and employees adapt to new working practices (coupled with the increasing focus on the ethical impact of business through "Environmental, Social and Governance") in this week's podcast we talk with Julian Hemming, partner and a chair of our International Employment Team on the findings in Acas' latest report on the financial cost of conflict at work and the practical steps businesses should consider for managing it.
Listen to the podcast and subscribe.
Are whistleblowing reforms on the cards?
The increasing risk of whistleblowing claims as employers adapt to the new normal has been well highlighted. While many complaints raised by an employee which cannot be resolved informally will fall to be dealt with under an employer's grievance process, it is important for employers to recognise that this process will not always be appropriate for whistleblowing complaints, which attract special legal protection (protected disclosures) and that a separate avenue for them to be raised and handled should be provided.
For a disclosure to be protected it must, in the reasonable belief of the worker, tend to show that one of the following has occurred, is occurring or is likely to occur: a criminal offence; breach of any legal obligation; miscarriage of justice; danger to the health and safety of any individual; damage to the environment; and the deliberate concealing of information about any of the above. The worker must also reasonably believe that the disclosure is "in the public interest", with current case law setting a low bar in this respect. Employers who blow the whistle on their employer are legally protected from dismissal (with no qualifying period of service required and no cap on compensation) and both employees and workers are legally protected from being subjected to a detriment, which could cover disciplinary action, loss of work, or damage to career prospects.
Concerns have been raised that our existing legal provisions do not afford adequate protection for whistleblowers with Protect, the UK's whistleblowing charity, calling on the government in its "Let's Fix UK Whistleblowing Law" to require all employers to meet standards for whistleblowing and follow recognised procedures, backed up by tougher enforcement for those who fail to listen or who treat whistleblowers badly, reducing the burden on whistleblowers at the Employment Tribunal so that they can enforce their rights and widening protection to previously excluded groups, such as volunteers and job applicants. A recent report by Protect found that one in five whistleblowers who contacted its advice line were dismissed after raising Covid-19 concerns in the first six months of the pandemic and that this increased to one in four being dismissed between September 2020 and March 2021. While the government has committed to a review in this area, including the introduction of a single body to enforce workers' rights, including whistleblowing protection, any immediate legislative reform now seems unlikely with the absence of an Employment Bill in the Queen's speech.
Maintaining trust and confidence in the working relationship is a considerable challenge for workplaces meeting the demands of the Covid-19 pandemic and adapting to a changing world of work, where employee voice and wellbeing is increasingly important. With regulators, such as the Financial Conduct Authority, launching their own campaigns to encourage employees to speak up with confidence, employers should take steps to ensure that they have an effective whistleblowing or "speak up" policy in place providing a process for employees to raise such concerns with an appropriate person in the organisation and with assurances that they will be handled appropriately and confidentially. The policy should make clear that any victimisation of the whistleblower will not be tolerated and the policy should be supported by robust training across the organisation. It is important to remember that any provision in an agreement, such as the employment contract or a settlement agreement, will be void to the extent that it purports to prevent an individual from making a protected disclosure.
International employers should also note that new whistleblowing rules are due to be adopted by EU member states, implementing the EU Whistleblowing Directive. The Directive applies to businesses with 50 or more employees based in the EU and the deadline for compliance depends on the size of the business's presence in the EU: a business with 250 or more employees must comply by 17 December 2021 while a business with 50 to 249 employees has an additional two years until 17 December 2023. Obligations under the directive include, among others, a requirement on organisations with 50 or more employees to put in place internal reporting channels that are sufficiently safeguarded and to ensure that reports are acknowledged and dealt with within set timescales. The directive only protects individuals reporting breaches of EU law but the EU is encouraging national legislators to extend the protection to cover wrongdoing relating to national laws.