Employment Law: What will the top issues be in 2022?

Whilst a number of ongoing COVID-19 issues are lessening as we start 2022, employers will need to have in mind how we transition back to a normal and hybrid workplace as the year progresses. 

Employers who accept that the workplace is transitioning, and who focus on the challenges and opportunities, will be much better placed than those that immediately insist on a pre-pandemic return to a fully office-based workforce.

In this and next month’s article for SBT, I focus on the top 10 issues that I see will most affect employers in the coming year, this month and next month:

1.Covid and a return to the workplace

The government has indicated that it is no longer requesting people work from home. This has not been a legal requirement in the past few months, and the return to the office is not a legal requirement either. Employers should be very careful about a wholesale return to the workplace. Covid is still an issue. Employers should be mindful of collective and individual employment issues including, but not limited to, contractual variations moving people from home, staff who might be at risk from covid, how they will assess the risk, and whether or not they are in a position to replace staff who leave because of stringent requirements to come back to the workplace. On that last point, in many industries, the balance between vacancies and applicants has shifted dramatically, and employees routinely demand flexible and hybrid working as a matter of course.

2. Working from home

After nearly two years of on and off home working, many employees will now be home-based either in whole or part. If an employee is working from home for any part of their employment, employers need to be aware of the differences with office work, the obligations they owe, how they can deal with the employee who is not close, and keep on top of issues. The simple position is that they should act like the employee is in the workplace, which includes a safe working set up, relevant rest breaks, only monitoring where reasonable, a separation on personal and work devices, and communications on any office issues. The last point is particularly important for employees who do not ever work in the office. They are often left out of communications, social events etc, and all employers need to adapt to the hybrid working model.

3. Flexible working and discrimination

As recently as 3 or 4 years ago, flexible working requests were almost always associated with working parents, or connected with an employee having a disability. Whilst the right to request flexible working is theoretically open to all after a short period, it was difficult for most employees to argue it was necessary. This combined with most employers failure to understand the right to make the request (which is a process rather than a right for it to be granted), and how it overlaps with other discrimination rights, often led to employers routinely refusing flexible working requests, and exposing themselves to a discrimination claim. A compliance with the process can still lead to a claim in other areas. That is more pronounced with hybrid working and staff wanting to be homebased. 

4. Monitoring and Consent

Employers should treat the issue of employee monitoring no differently with hybrid and home based staff. Employees have an expectation of privacy that their activities will not be routinely monitored eg internet usage, private e-mails etc. If employers want to monitor their employee productivity in that regard, they should always inform staff they will do so (usually via a relevant policy), and keep the monitoring proportionate and reasonable. Employees expectation of privacy will be even higher when they are home based in whole or part. It also goes without saying that employees should be allocated appropriate devices for home working, and should not use their own computer or mobile phone. If they do, it becomes much harder for any monitoring to occur reasonably.

5. Safety and Prevention

There is often an assumption that employees working from home will enjoy a safe working environment. This may not be the case. Employers who have staff working at home, should be mindful of any personal issues in an employee’s life that may affect them, and also may lead to the employer being criticised. Employers should have confidential avenues available for all employees to discuss any such difficulties, but also be alert to the warning signs for problems such as domestic abuse.

Employers should always be alert to any issues involving staff outside the traditional workplace, and always take proactive advice in how to deal with these issues.

By Alex Jones, Managing Director,
365 Employment Law
Tel: 01903 863284
ajones@365employmentlaw.co.uk
www.365employmentlaw.co.uk