The outbreak of coronavirus has opened up a minefield of issues for employees and the companies that they work for.
With discrimination claims involving women on the rise, we ask three leading legal minds to answer your key questions about workplace rights – covering everything from overseas holiday requests to emergency childcare leave and inevitable redundancies.
Dive in and educate yourself on the lay of the land post-Covid:
“Do I have to go back to the office now that the rules have relaxed?”
Many companies are managing a gradual transition back to the office this month, with the encouragement of a government message that it “now safe to go back”.
But if you’ve been working from home already (bearing in mind that some jobs rule out WFH entirely) and are reluctant to return, what then? Can your employer force you to return?
“Broadly, yes,” says Jodie Hill, managing director and solicitor at Thrive Law, a firm that specialises in employment rights. “Employers can compel employees to return to the office and, in some cases, a refusal by an employee to do so may be a failure to comply with a reasonable management instruction. This could give rise to disciplinary consequences.”
In reality, it’s unlikely to come to this. You and your employer both have an interest in maintaining a good working relationship – plus everyone is aware that coronavirus comes with its own unique set of challenges to be puzzled out together.
“This is an unprecedented time and most people understand the need to be flexible,” says Belinda Lester, founder and managing director of Lionshead Law, a boutique law firm that specialises in employment, commercial and immigration issues.
“There’s an onus on companies to act reasonably and responsibly, in consultation with their employees. So if there’s an issue with returning to work, it’s far better for both parties to talk it through in the first instance and find some compromise. Employment disputes typically happen when communication like this has broken down.”
In essence, though – and as long as a workplace is deemed Covid-safe – the decision over whether or not to return to work rests with your employer.
“In England, current guidance dictates that all employees can now be asked to return to work provided the workplace is Covid-secure, and they have not been advised to shield as a result of localised lockdown,” says Kate Palmer, associate director at employment firm Peninsula. “This means that an employee can be asked back into work regardless of whether they can do their job from home or not.”
“What if I’m worried about returning to work?”
“The first question must be why you are hesitant to return to work,” says Hill. “Employees should be able to explain this and explain why they are reluctant – it’s not just a case of them not wanting to return, but more about what the specific concerns are, and what an employer can do to lessen that.”
Again, this is best negotiated via an informal chat with your line manager or HR department. As an employee, it’s best to be as honest and specific as possible about what you’re worried about. Your company then has an obligation to work out if there are any suitable alternative roles that would allow you to work from home, or to consider flexi-working arrangements where you alternate between the office and home.
For example, if you suffer from anxiety that has increased over lockdown and that your employer understands that the condition is exacerbated by a customer-faced role, you may agree to swap to a non-public role. Or you may develop a longer-term support plan together that involves your manager more regularly checking in with you. That would count as the kind of reasonable adjustment that employers would be expected to think about in any situation involving disabilities or health concerns.
If you still can’t find a resolution and believe you have a viable reason in wanting to stay working from home, you could raise a grievance or put in a formal flexible working request. But your employer is equally entitled to refuse these in line with the statutory reasons to do so.
“What are my rights if I’m pregnant, breasting or have childcare demands?”
First off, you’re right to be vigilant since discrimination against mums and mums-to-be is on the rise since the outbreak of coronavirus (see below for more on this).
Broadly speaking, the same rules as above – but if you’re pregnant or breastfeeding, your employer must also carry out an individual risk assessment in addition to its general Covid-secure assessment. This should look at factors like your use of public transport in getting to and from work, and whether the workplace risk is greater than in everyday life outside the workplace.
“If, having assessed the work circumstances on an individual basis, it becomes apparent that the employee or that or her baby is subject to risk, the employer must take action to avoid it,” says Hill. “If there’s no way of doing that, then they have a duty to look at other options such as altering working conditions or hours, offering alternative work, or arranging temporary paid suspension.”
In terms of childcare demands, Lester says that is another area for companies and their employees to meet in the middle and consult together on. For example, as childcare demands become more complex post-Covid, companies may consider offering paid or subsidised childcare in the place of another benefit for employees who want it.
If you, as a mum, have to take time off to care for a child who’s off school or nursery through sickness – something that may be increasingly common with concerns over Covid-19 in the next few months – you should be offered dependent care leave, although this is typically unpaid. However, you may be eligible for sick pay if you are required to self-isolate due to being exposed to your child who has symptoms.
“Can my employer force me to cancel holidays to a quarantine region?”
In theory, there’s nothing to stop an employer from asking someone to cancel their annual leave, and if they did so, they wouldn’t be liable to refund any holiday costs. But this really comes down to whether doing so would amount to a reasonable management instruction. In cases where employees could do their role from home (and have proved that during the months of lockdown), it’s a hard argument for companies to make.
“In this scenario, employers should provide a good business reason to justify their decision,” says Hill. “It’s likely to rely on the fact that an employee travelling to a quarantine region may then be out of work for a further two weeks, which is something the business cannot cope with as the role cannot be conducted at home.”
In other words, if you do your job easily and well from home, there’s less likelihood that your employer will force you to cancel your holiday. Even if they can legally do so, it will likely damage their working relationship with you; something that always need to taken into balance.
“I’ve been advising my clients to adapt their company holiday policies and contractual requirements around leave in light of coronavirus,” says Lester. “All overseas travel is inherently risky right now, and it’s not an automatic entitlement for employees. Companies need to look at ways they can mitigate the risk, perhaps by requiring more notice or different week limits for holiday leave, or attaching conditions to quarantine regions.”
However, she’s keen to emphasis that this is a two-way process. “An employer can’t just refuse a holiday request unreasonably; they have to justify their decision with a good business reason. And rather than simply imposing changes in holiday policy, they need to meaningfully consult with their employees and find a way forward that is driven by a majority decision.”
Also if an employer does cancel your holiday, they have to give you fair notice. “For example, if an employee was to go on holiday for five days, they should be provided at least five days’ notice of the cancellation,” says Palmer.
Saying that, it’s much better for employers to think about possible consequences of allowing overseas holidays before authorising them, rather than requiring the employee to cancel the holiday after approval has been given.
“An employer who cancels a holiday knowing that, in doing so, that employee will forfeit the costs of flights and hotels would need to have a pretty good reason for doing so and could risk the employee resigning and claiming constructive dismissal if the cancellation was deemed unfair or unreasonable,” notes Lester.
“If the employee has obtained permission for a holiday and was given it, I would say it would be pretty dangerous for the employer to then change its mind knowing the financial cost to the employee of doing so and the damage that would be caused to the employment relationship.”
“What discrimination issues should I be aware of as a result of coronavirus?”
Overseas travel – particularly why you want to travel abroad – is an important issue to be aware of, in terms of potential discrimination.
“Employers should also be mindful of why those employees are travelling to certain areas,” says Hill. “In most cases it may just be a holiday, but employees could also be visiting relatives in other countries. In those cases, demanding that employees don’t go, or come back early, may be argued to be indirect discrimination due to those employees’ national origins.”
Then there’s women. Depressingly, both Hill and Lester say that they’ve seen a big uptick in discriminatory issues involving women, particularly those who are pregnant or on maternity leave, as a result of the pandemic.
“Anecdotally, we’re seeing lots more women being let go at the moment when they’re pregnant, on maternity leave or have challenging child care requirements,” says Lester. “Often this happens under the guise of necessary redundancies – which are happening a lot anyway, of course – but I have a hunch that it’s being used as an excuse to mask discrimination in some cases.”
Meanwhile, Hill says her firm’s Coronavirus Helpline, which provides free initial advice on employment concerns due to COVID-19, has been bombarded with calls from women (the firm also supports the No Limits virtual conference series for women in business).
“So many women have been subject to a real detriment,” she says. “They may be being made redundant, being forced to take part-time roles due to their childcare, or being actively being dismissed because of their pregnancy. It’s so frustrating that we’re still seeing such overt discrimination. And it seems to have become a lot more common in the past few months, as it’s just another ‘issue’ which employers don’t seem to want to take on right now.”
In terms of discrimination, you also need to be aware of new rules that may create an indirect bias against women.
“For example, if your company says you cannot work from home without adequate childcare provision, or you must work from home between the hours of nine to five, this may be grounds for indirect discrimination – since we know that women bear the brunt of child care demands more than men (especially under lockdown), therefore that policy may unfairly target female employees,” says Lester.
The same would apply if you as a woman are disciplined or threatened with dismissal due to repeated absences to look after a sick child; because as a woman, you are more likely to be the primary caregiver.
Hill has also seem a rise in disability discrimination in wake of the pandemic, along with unfair dismissals due to whistleblowing. “This has happened where employees were furloughed without their agreement or without their knowledge, and were then dismissed when they raised this as a formal concern of furlough fraud,” she says.
“How should I handle a dispute with my boss?”
Your first step is to try talking things out. If that doesn’t work, you need to formally approach your line manager and then your HR department and follow the official procedure for grievances, as laid out by company policy. Also you need keep a record to identify patterns of behaviour, along with dates, times and details of any meetings you have that involve your concerns.
It’s understandable that, in the midst of a dispute, you may just want to leave your job: but doing so will mean you have more hoops to jump through if you later choose to bring an unfair dismissal claim against your employer.
Lester recommends consulting with an employment lawyer before giving in your notice. “Particularly, if you think you’re being discriminated against, it’s worth proactively speaking to a solicitor to get a feel for your position and work out next steps,” she says. “It may cost £300 or so for a consultation but compared to the costs of an employment tribunal, it’s money well-spent.”
“What happens if I’m made redundant?”
Sadly, lots of people are being made redundant right now and it’s the kind of topic that’s worthy of an article in itself. But suffice to say that redundancy is a process that employers are bound to with codes of conduct that kick in after two years’ service in any company, as stipulated by the Advisory, Conciliation and Arbitration Service (ACAS).
This means your employer cannot just take you into a room and make you redundant: they have to consult with you, and have transparency in a selection criteria that does not discriminate in terms of age, gender, race and many other factors.
This includes indirect discrimination. For example if a company use flexible working as a criteria, they could be discriminating against women. They would need to show that flexible working is no longer possible after the business has changed. For more information on your rights during redundancy, check out ACAS.
The above information is intended as guidance only. Always speak to a SRA-regulated legal adviser before taking legal advice, and think carefully before making any decision.
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