The workplace has been turned on its head by the pandemic. Introducing changes to work rules, policies, practices, and contracts that would often have been expected to take weeks or months have been enacted within mere days, hours, or no notice at all in some cases.

Flexibility used to mean a later or earlier start when required. It can now mean all manner of arrangements, in particular working from home and working around family commitments. Whilst often positive, these changes are not without their challenges.

How have Employment Tribunals been approaching these issues?

Having been involved in a large number of cases involving these issues, both pre and post-pandemic, it is actually the case that the law on this area has not really changed. What has been different is the context in which the changes have been enacted. As ever in employment, context is everything, and Employment Tribunals will continue to pay high regard, as the case law requires them to, to situations where a business is faced with an existential threat to its existence.

For instance, requiring employees to work from home where they are able was self-evidently justified in many cases when the government has required it. Similarly, furlough was essentially a contractual variation to employees’ contracts but widely accepted even though it meant reduced pay and no work was being provided.

Whilst these things may sound obvious because the context required it, the employer still does not and has not ever had carte blanche to make contractual variations. The Employment Tribunal will still closely scrutinise what was said at the time and how the changes were enacted along with the terms of the employment contract.

What have clients learned?

Effective and carefully planned processes, even at the last minute, along with robust documentation in the form of employment contracts and consultation processes remain the cornerstone of demonstrating you behaved reasonably in the circumstances to an Employment Tribunal.

Those documents will help evidence and justify what you did and how you did it. There is great satisfaction to be had when the Employment Tribunal praises the employer for how it did what it did at the time.

Nevertheless, avoiding the Employment Tribunal in the first place remains the optimum strategy!

What should I be doing now?

At present, the core issues to be considered for most employers with employees working flexibly (or who could be asked to do so in the future) fall into two main categories:

• The contract. Do my contracts allow me sufficient flexibility to require employees to work from home, work reduced, or different hours, redeploy or assign them different duties, or even lay them off?
• The Policies. Do I have an effective homeworking policy dealing with such things as data security, equipment and expenses, health and safety, performance management issues, and ending homeworking?

Whilst uncertainty about the pandemic persists it will be sensible to ensure these issues are dealt with now to avoid future disputes and liabilities and whilst the employee may be more receptive to agreeing to them. Flexibility is a two-way street and certainty on these issues, in the form of written policies and procedures, will normally buy off a substantial amount of risk as expectations are managed.

If you would like to discuss topic further please contact Tom Mitchell tom.mitchell@milesfanning.co.uk

Employment Law – Lessons Learned from the Pandemic – 11 May 2022