Employment Law: What will the top issues be in 2022? – Part 2

By Alex Jones, Managing Director, 365 Employment Law

Last month I wrote the first part of what I see as being the key Employment Law Issues in 2022. The five I focused on where Covid and a return to the workplace, working from home, flexible working and discrimination, employee monitoring and safe home working environments. 

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.

This month I focus on the next five issues I think will be most relevant in employment law:

1. Health and Safety

A lot of employers have misunderstood their Health and Safety Obligations throughout the pandemic. This has not been helped by the poor nature of the laws relating to covid, with guidance and law often interchanged in messaging. The messaging now is that employee should return to the workplace, and that there is no requirement for anyone to self isolate, even if they have covid symptoms or have a positive test. Employers should not naively impose that messaging in the workplace. The obligations they owe to staff (and customers) to create a safe working environment under a myriad of existing legislation and case law takes precedence over guidance. In simple terms, employers should not have employees in the workplace with covid symptoms without a negative test. It goes without saying that if employers knowingly allow positive staff in the workplace, and negative outcomes could lead to liability that will be both costly and cause reputational damage.

2) Working Time Issues

Employees’ rights under the Working Time Regulations are clear. They cannot be opted out of, other than in respect of the maximum working week of 48 hours. Those regulations require employers to allow employees to take reasonable rest breaks, including 20 minutes every 6 hours, 11 hours uninterrupted every 24 hours, and either 24 hours every 7 days or 48 hours every 14 days. A breach of any of these will be a breach of the regulations and lead to liability. There are some limited exemptions which will not apply to most workforces. Given hybrid working, and working from home, employers should make sure staff take sufficient breaks. Are employers clear that their staff are doing that? What systems do they have in place to make sure happens? Liability will be the same regardless of the working location.

3) Data Protection (GDPR)

Employers should be extra cautious in the new hybrid working environment about their own data/confidential information, as well as that relating to customers and third parties. As an example, if a senior employee works from home and has access to top level confidential information (eg trade secrets), do others in their household and/or unconnected visitors see that information if their workstation is open? Do similar visitors see third party or customer information in those circumstances? Can employees be monitored in the same way if they are working from home? These are all questions employers should address when setting up any form of remote working.

4) Protecting Confidential Information

Specific contractual provisions give employers protection from employees who leave and wish to exploit confidential information, customer lists etc. Most employers I speak to do not understand how restrictive covenants work in practice. There is rarely a middle view, with most employers taking the view that post termination restrictions are always unenforceable and therefore pointless, or that the courts will enforce everything including very wide non compete clauses. Neither position is correct. Protecting the goodwill of a business from departing employees is more complicated in a hybrid working environment eg if there is a geographical non-complete clause where is the workplace now calculated from? How do employers protect their confidential information with home working? All employers should review their existing provisions in light of new working methods.

5) Whistleblowing

Whistleblowing protection is well established. Employers often have avenues in place for staff to talk of any concerns before they escalate. Those avenues are harder in a hybrid/remote working environment. Employers should make sure that staff have the ability to easily address any concerns. A lot of employers view the ability to discuss whistleblowing as a means of limiting their own liability, often leading to distrust. In particular, given less staff are in the workplace, employers should be available to discuss any concerns about potential illegal behaviour including bullying, health and safety, or any potential illegality that might cause legal and reputational risk.

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.

Alex Jones
365 Employment Law Solicitors
Tel: 01903 863284
ajones@365employmentlaw.co.uk
www.365employmentlaw.co.uk