Employment, Pensions & Immigration
The past two years have seen dramatic change and upheaval in the way businesses operate, and to the employer-employee relationship in particular.
The COVID-19 pandemic has accelerated trends such as remote working and increased the use of technology in the way employers manage workers. Many employees are now re-evaluating their careers, while employers are trying to work out how best to support the workforce alongside ensuring that the business can continue to operate effectively in the modern world where Environmental Social and Governance (ESG) is firmly on the Boardroom agenda.
In this article we consider some practical ways HR and in-house Counsel can help businesses tackle these critical issues.
The increased pressure on businesses to meet environmental, social and governance (ESG) goals, means many employers are looking at ways to operate more sustainably, create a more diverse and inclusive workplace and support employee needs. HR teams are likely to be tasked with assisting their businesses adopt strategies to help them meet their ESG goals.
Environmental issues such as reducing emissions, improving sustainability and encouraging a greener workforce will be key issues for all businesses in 2022. HR can help by encouraging their organisation to talk about the steps it is taking to improve sustainability. HR might also wish to review job descriptions, employment contracts, policies and procedures with a view to enshrining the company’s environmental ethos and improving flexibility to allow for change in line with future need.
The social issues (the ‘S’ in ESG) extend to a broad range of people issues which HR and in-house counsel can help to tackle in practical ways. Key areas to focus on are:
For more information on this, see our recent article.
HR should ensure that policies and procedures are updated to align with ESG objectives. To help with this, we have developed the HR Eco Audit which is designed to assist employers in meeting their climate targets and strengthening their sustainability culture.
Employers are increasingly likely to see problems and conflicts arise where employees express strongly held beliefs around social change, such as climate change, veganism, gender non-conformity and even anti-vaccination, which can lead to unhappy and disrupted workplaces.
This might happen where an employee’s personal views conflict with the company’s well-intentioned objectives such as around improving diversity and inclusion.
Recently we have seen cases where an employee with strong beliefs (such as around climate change) refuses to undertake a particular project or deal with a particular client because it conflicts with their beliefs.
Refusal to obey a reasonable management instruction is a breach of contract and could give grounds for an employer to dismiss fairly provided the proper procedure is followed. However, this must be dealt with sensitively and on a case by case basis, taking care in particular to manage discrimination risk.
An employee who is harassed or otherwise treated less favourably because of their belief could bring a discrimination claim. For example, a recent Employment Appeal Tribunal ruled that gender critical beliefs are protected as a philosophical belief under the Equality Act 2010. It is only a matter of time before we see a case where an antivaxxer claims they too have a protected belief, and where the court will have to decide whether that belief is protected and, if so, weigh their belief against the risks to those with disabilities and other vulnerabilities.
Line managers need to understand that teasing and intimidating an employee for speaking up about their beliefs could lead to a bullying and harassment claim if nothing is done to stop the behaviour. Complaints about being bullied for holding a certain belief should be treated seriously, in accordance with the company’s grievance or bullying and harassment procedure, with the perpetrator dealt with under the company’s disciplinary procedure, if appropriate.
The use of artificial intelligence and machine learning is becoming increasingly important in managing workers, from the use of algorithms in recruitment, to the monitoring of remote workers and the collection and processing of employee data for diversity monitoring.
A recent report by the TUC considers the impact on workers and the employment law implications of using this technology, and in particular how this can increase inequalities. Employers therefore need to use technology carefully to minimise risk of discrimination issues arising, such as where using AI in recruitment embeds biased decision making.
The Equality and Human Rights Commission is expected to publish its strategic plan in 2022 providing guidance on how the Equality Act 2010 will apply to the use of new technologies used in automated decision making, including in recruitment. Employers should also look out for new guidance from the Information Commissioner’s Office on data protection and employment practices, following the recent consultation.
This is not new but remains a key topic for HR for businesses striving to progress their ESG initiatives. Achieving fairness in pay and a diverse and inclusive workforce are priorities for many businesses. To tackle these issues, employers need to be armed with meaningful diversity data about the make-up of their workforce (including ethnicity, religion or belief, sexual orientation, disability, age and socio-economic background). By collecting this data, employers will learn what under-representation issues they have and what is preventing individuals in disadvantaged groups from entering and/or progressing in their business.
The biggest hurdle for employers will usually be managing to collect sufficiently comprehensive diversity data from staff who may feel uncomfortable disclosing sensitive information. There are however also data protection implications, particularly as diversity monitoring will generally involve processing 'special category' data, the most sensitive form of personal data, as this includes information about ethnicity, health and sexual orientation.
There are steps employers can take to minimise risk, such as anonymising data and keeping written records of what they are doing with the data and why. Communication and building an atmosphere of trust are key, so employers must be transparent about how they process employee data and take steps to reassure staff on confidentiality, as well as informing staff that meaningful action on D&I will follow. For more information on this area watch our on-demand webinar Improving Diversity and inclusion in the workplace and data collection and use.
The government is currently consulting on disability workforce reporting for large businesses with 250 or more employees. The consultation asks for information on current reporting practices and views on implementing a mandatory approach. HR should look out for the government’s response which is expected to be published on 17 June 2022, as part of the National Disability Strategy.
As the pandemic approaches its second anniversary, employers will have become accustomed to reacting swiftly to changing government guidance and rules. This is likely to continue in 2022 where employers will need to be ready to react to change as it happens, particularly in relation to workplace safety and travel restrictions affecting employee mobility.
Currently in the UK, vaccination against COVID-19 is only required in care home settings, and from April 2022 this will be extended to the health and wider care sector. Australia, the United States and many European countries have seen increasing restrictions on freedoms including vaccination passports to enter a wide range of workplaces and other venues. The UK Prime Minister Boris Johnson has called for a national conversation on mandatory vaccination. Although it seems unlikely that the current UK government will mandate vaccinations other than in particular workplaces, other employers will be keeping workplace entry requirements and procedures under review in line with health and safety assessments and changing workplace safety guidance.
For UK employers outside social and health care, mandating vaccines is likely to be difficult due to data protection constraints and discrimination risk. But employers may also wish to ask staff about their vaccination status so that they can conduct appropriate risk assessments. They may also consider asking staff to show a negative COVID test or confirm that they have done one before entering the workplace. Some employers have gone further and have reportedly cut contractual sick pay for unvaccinated employees, reducing their pay to SSP only while self-isolating after being identified as a close contact of someone with COVID-19.
There are unlikely to be any data protection issues where an employer just uses visual checks of an NHS Covid pass or hard copy proof of vaccination where personal data is not recorded. However, where an employer records information about vaccination status or test results, this will involve processing of health data which has special protection under data protection law. For the implications of this for employers, see our article: Can employers ask staff whether they have been vaccinated?
Businesses which have been forced into home working during the pandemic will continue to reassess whether some degree of remote working should continue going forwards. There is no one size fits all. Some have already decided to press on with remote working and hot desking, while others are keen to see workers return to company premises. Some are still working it out. What works for one business won’t necessarily work for another – and there may even be different approaches taken across different parts of the same business.
As many employers continue to trial hybrid working models, they may face some difficult discussions and potentially even employment disputes. What work pattern is most productive and efficient for the business? How can the business ensure it continues to comply with its health and safety obligations across thousands of different workplaces that working from home creates? How can performance best be managed remotely? How should an employer respond to a permanent home working request from an employee with caring responsibilities who has been working in this way for almost two years? Hybrid working may also throw up new discrimination risks, and as employers plan for new ways of working, they could unwittingly create inequalities. For example, with it becoming more evident that women are more likely to opt for remote working, how can employers ensure that remote workers, who might be less visible, are ensured the same opportunities for progression? Employers who ignore these issues could face discrimination claims.
Employers who can navigate these complex discussions successfully, however COVID-19 evolves, could engineer competitive advantages in retaining and attracting staff, but the complex and fast-moving situation means that it is bound to be a challenging year for HR.