The workplace in 2021
Return to the workplace
Employers face significant logistical challenges, as well as potential litigation and reputational risk if there is a cluster or outbreak of infections in the workplace. Mask-wearing and social distancing are likely to continue until at least Q3 of 2021 - the earliest forecast for herd immunity. This means continued compliance with evolving government and regulatory guidance on health and safety in the workplace. It means balancing a duty of care to provide a safe place of work, particularly where employees are clinically vulnerable, pregnant, disabled or more at risk from COVID-19 due to age or ethnicity. Also to consider, risk assessments and obligations not to discriminate or cause detriment because of a person’s protected characteristics. The global pandemic has accelerated a focus on sustainability, social and governance issues in the workplace. Organisations may challenge traditional ideas about the office ranging from its size, physical layout and cultural role.
Companies can build pandemic resilience by using ESG initiatives as a springboard to promote sustainable business, embed diversity and inclusion initiatives (such as #10000BlackInterns), incorporate climate change considerations into employer pension fund investment strategies, and articulate a corporate purpose. This can boost employee engagement, wellbeing and productivity. Companies should engage with the workforce on the return to workplace strategy; this is integral to its success and also part of risk management. New digital tools can be deployed to enhance the speed and clarity with which this key stakeholder voice is incorporated into business strategy; and technology can also enable staff collaboration and creativity.
Agile working abroad
Employers are facing more requests to work remotely, including requests to work from abroad. This can raise contractual issues (eg mobility clauses) as well as operational concerns about appropriate training and supervision. Organisations must navigate local legal and regulatory issues including immigration, tax and social security requirements. There are also cultural issues to consider from a firmwide perspective. Whatever the post-COVID future of the workplace, remote working is expected to become more institutionalised with employees spending at least some time working from home, with some requesting to work abroad. Organisations will need to develop consistent and fair policies and procedures on remote working as they face more requests from staff for home working and ongoing flexibility. Whilst some welcome the potential for better work/life balance, others are keen to see people back in the office to boost mental health, to collaborate and to innovate.
Impact of a vaccine
The prospect of a vaccine presents opportunities for a more wide-scale return to the workplace. Employers will need to consider how the roll-out of a vaccine will fit with their strategy for a return to the workplace. Some employers may consider making the vaccination a pre-requisite for employees returning to the office, but this could raise sensitive employment law and even potential human rights considerations.
- Availability and timing – consider scope for private purchase and distribution of the vaccine (particularly for organisations with a younger workforce, who would not otherwise be prioritised)
- Documentation – consider data protection issues with processing special category data, and whether to seek proof of vaccination
- Employee communication and engagement – address any nervousness about a wider scale return both from essential workers who have remained at work throughout the pandemic and those who have worked at home
- Exceptions – some employees may be advised not to be vaccinated and policies will need to consider how to accommodate this
Redundancies and costs-saving measures
Many companies are confronting the need for cost-cutting, restructuring and potential redundancies in light of the challenging economic outlook. Over 500,000 redundancies have reportedly been planned since the start of the pandemic. Restrictions in recent months have hit businesses hard, particularly in the hospitality and retail sectors with the collapse of high street giants such as Debenhams and Arcadia. The furlough scheme in the UK is due to end on 30 April 2021 and it is not yet clear whether this will be tapered (as it was before) or replaced. As the scheme winds down, the UK will inevitably see rising unemployment figures. Where employers find themselves looking to make redundancies, careful planning is required around collective consultation obligations and costs of severance. In turn, we anticipate increased employee engagement with trade unions and an upsurge of litigation in the aftermath. Companies will need to review employment costs and opportunities to preserve jobs and retain talent through re-training and innovation. We expect a rise in self-employment and project-based consultancy arrangements alongside any necessary business restructuring and redundancies.
People issues post Brexit
The UK departure from the EU will see freedom of movement come to an end. Brexit will continue to affect workforces with business transfers, restructuring, employee relocations/secondments, dual-hatting arrangements and potential redundancies. Employers will also need to grapple with immigration (and tax) issues with the introduction of the new points-based system where recruiting from the EU (or elsewhere). This will impact recruitment strategies. In the short term, it seems unlikely that EU-derived employment legislation will be changed. The UK government has insisted that workers’ rights in the UK will be ‘protected and enhanced’. However, the UK courts will no longer be bound by the decisions of the CJEU, and this gives scope for divergence. Rights under TUPE (eg information and consultation obligations, restrictions on the harmonisation of terms after a business transfer), protections under the Agency Workers Regulations and the Working Time Regulations may gradually be eroded, but we don’t anticipate material changes in the near future.
