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‘Going back to work, but not back to the way we worked’ – Winding up WFH will remain TBC for a while yet

13 May 2021 | UK
Legal Briefings – By Tim Leaver and David Palmer

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Confusion and tricky calls await employers hoping to return to the office in 2021.

 

The Takeaway:

  • Business should plan for a staged, pragmatic and flexible route to post-pandemic working arrangements from the summer
  • Hard-line policies to force staff to the office or be vaccinated will be risky and counterproductive for most firms through 2021
  • Many employers should plan for an era in which remote working will be a far more established part of the workplace

 

“We’re getting asked repeatedly by clients if they are now able to bring people back to the office,” notes Herbert Smith Freehills partner Tim Leaver.

“That started back in March after the lifting of the 'stay at home' order.” It’s a common refrain among employment advisers, illustrating that the unveiling in February of the UK Government’s roadmap for lifting Covid-19 restrictions has left many employers confused about the practicalities of getting workplaces back to semi-normal. Mixed messages from politicians have only muddied the waters, with unnamed ministers quoted in some media citing redundancy risks for long-term WFHers – though most employers remain focused on the 21 June date when we currently expect the majority of restrictions to be withdrawn.

The retail and leisure sectors have, at least, received a degree of guidance in what happens in customer-facing areas, with indoor hospitality and all but the highest risk sectors opening from 17 May on the current timeline. Employees in a number of essential sectors, or where their work cannot be performed from home have, of course, largely ploughed on through lockdowns albeit with all manner of different ways of working to ensure workplaces are as Covid-secure as possible.

But that leaves the mass of office-dominated companies with a range of thorny topics to tackle, among them policies on vaccinations, the spectre of long-term measures for social distancing and, of course, continued hybrid working as a "new normal".  Employers are not only facing a metaphorical multiple-choice exam on how things might work when 21 June finally arrives, they are also having to grapple with the debunking of myths around homeworking and designing the workplace of the future to ensure it is fit for purpose for a new generation workforce who have embraced both the significant challenges and opportunities that homeworking has offered. Eyes have been opened as to the possibilities as assumptions have necessarily been brushed aside.

Leaver says the UK situation "has not been helped by an admittedly understandable, albeit frustrating, lack of clarity about what workplace restrictions will look like from 21 June". He adds: “Will there remain a requirement in the workplace, even if social restrictions are lifted, to maintain social distancing, screens, limited occupancy and one-way systems? Wherever we land, what is needed is clear guidance on what is expected of employers, and employees, as things start to open up. Some of that will likely be fluid, depending on how emerging virus variants can be dealt with and the impact of vaccine boosters.”

The limbo state has seen large employers announce varying stances for post-pandemic arrangements but most firms want some degree of meaningful return to work. “There is considerable appetite to get people back into the office, at least for a proportion of their working time,” says Leaver. “Some firms, especially in the financial services sector, are looking to do that on a largely full-time basis, others – including most of the top 50 largest employers in the UK, are embracing the flexibility, trusting that productivity, staff engagement and retention can be maintained or improved through flexible homeworking arrangements.”

With the ministerially foreshadowed potential for a degree of continued workplace compliance with Covid-secure measures of one type or another, even after 21 June, companies are well advised to plan for a phased return from June… with plenty of flexibility built in. As such, tracking and following government guidance remains a must.

Leaver sums up the options facing employers: “Number one, for most employers it’s not going to be a big bang return to working exactly the way it was before. For many, it will never go back to the way it was, so you may need to change your mind-set. Number two, from a purely pragmatic perspective, you should think about planning for a phased return to semi-normality – irrespective of government requirements from June, don’t forget that many employees will have been working exclusively from home for over a year and a degree of readjustment to working patterns and a balancing of home-related expectations will be needed to maximise productivity, wellbeing and contentment." 

Missing water cooler moments

If state guidance and the new norms of social distancing can get employers so far, medium-term issues like policies on Covid vaccinations or post-pandemic remote working are less easily resolved. Employers wanting staff back at desks certainly face tricky calls. With WFH working better than expected during lockdown, firms will find it harder to reject demands for flexibility, at least while Covid lurks in the background. Reflects Leaver: “It boils down to reasonableness, like most things in employment law. If the employer operates a Covid-safe environment, with all appropriate precautions in place, it’s going to be harder for employees to say: ‘I'd rather not come in.’ But it’s a bold employer who puts undue pressure on people now when they haven’t properly thought through all of the consequences.”

Employers will likewise have to take requests for flexibility more seriously than pre-pandemic and will have to work harder to justify decisions individually if they are rejected. One of the less exciting truths about the flexible post-pandemic workplace is it will require new processes – and almost certainly more process. The shared physical location with standard working hours traditionally did a lot of the heavy lifting for managers; systems of assessing, recruiting, managing and promoting staff will need major revisions to handle long-term remote working and the risk of overlooking those who are not present in the office all of the time.

The future of work may mean more freedom and may open up more opportunities, but part of the price will be additional fail-safes and processes to ensure that things don’t go wrong.

“For most places there are going to be a greater number of people working from home than before” says David Palmer, a senior associate at HSF. “So what’s going to be the impact for those that work from home more often? All the research points towards potential disadvantages in areas of work allocation, bonuses and promotions.” Unchecked such shifts increase the odds of indirect discrimination against women and disabled staff that may traditionally be more likely to want to take up such arrangements. Notes Palmer: “Systems will have to be put in place to work against this potential form of discrimination. You’ll need to tackle a degree of unconscious behaviour in people who value the physical water cooler moments as a way of connecting with their staff.”

In comparison to the task of rethinking decades of office-based work, the debate over vaccinations looks more marginal, despite headlines of ‘No jab, no job’. Advisers believe that, given the many shifting factors involved, few employers outside of government mandated sectors will attempt such a blanket policy even after the adult UK population has been offered a vaccine by late summer. “To say, ‘We’re not giving you a job or letting you back into the office unless you have been vaccinated,’ is fraught with legal risk,” remarks Palmer, noting that, once you have layered on necessary exceptions and tackled numerous practical issues, it may not be as attractive as it originally seemed for some. Not least of those challenges is a lack of rigorous evidence that vaccines prevent Covid transmission (as opposed to reducing transmission), undermining employers’ purported justification of protecting colleagues. The big question is whether the policy is designed to protect the individual themselves, or their colleagues – not all employers are clear on that in their own minds.

There is a similar view on the chances of widespread use of ‘Covid passports’, though such measures will likely be used in isolated contexts like international travel and large public events. Remarks Leaver: “If you are saying you can’t come to the workplace without a vaccination, what about clients who are visiting? What about suppliers? What about an urgent courier? You’ve got to understand what your original rationale is and be consistent. Quickly you find it becomes increasingly impractical unless we get to a point where the government mandates it in certain settings.”

‘Exciting and cool things’

Despite wariness regarding a choppy post-pandemic economy, many blue-chip firms look set to seize the chance for a longer-term reset in how they work. Many firms have signalled major increases in homeworking since the pandemic – among them HSBC, PwC, BP, Nationwide and Twitter, with much talk of staff having the chance to work remotely up to 50% of the time. While a good number will likely fall back on old habits if Covid passes into memory, few are expecting a return to pre-2020 norms as firms compete for talent that is increasingly demanding flexibility.

For the most radical companies, a wider rethink could mean entirely overhauling how work is assessed and staff interact. Another progressive step being mooted is opening up workforces to national or even international scope as companies consider allowing staff to work from greater distances – a trend already simmering in recent years in the technology sector, despite considerable tax and legal complications. “This is a once-in-a-generation opportunity to re-define how people work and are rewarded,” enthuses Palmer. “A lot of businesses could do a lot of really exciting and cool things.”

If that sounds a little too Panglossian given the reams of research showing how poor most large firms are at such far-reaching institutional change, many argue this is an inflexion point that will richly reward progressive firms and could make life more challenging for the bulk of the indifferent. Concludes Palmer: “This could bring us to a totally different way of assessing performance – it’s not about presentism, it’s about measuring output and that’s something historically employers have been very bad at.” Leaver concurs: “It presents us with huge opportunity to take a leap forward, alongside a significant risk if employers get it wrong.”

Better get cracking now.

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