A growing gig economy, automation, Brexit… the threats to UK employment were already growing. Then a global pandemic hit. As life is redrawn and rebuilt on a near-daily basis by Covid-19, employment lawyers are struggling to recontextualise existing laws while grappling with the ever-changing guidelines being churned out at dizzying speed. Kathryn Dooks, a partner in the employment team at Kemp Little, recalls the ‘mad rush’ at the beginning of the crisis.
‘Everyone was just trying to do what they could in a very short space of time, with very limited information available from the government. The guidelines weren’t always clear – often the government used Twitter to release policy on certain points, so it was a bit of a mad scramble, and employers were just doing their best.’
WFH is going on?
When the pandemic hit in March, workers who remained in active employment were divided into two camps: designated key workers – from the NHS frontlines to office workers in food and logistics – and those instructed to work at home. As the closure of businesses triggered mass redundancies and the introduction of the Coronavirus Job Retention Scheme, things were complicated further for workers and employment lawyers alike.
Prior to the introduction of the Coronavirus Act at the end of March, the term ‘furlough’ carried no legal meaning in UK employment law. Suddenly, it was the one word every employer had to struggle with. John Mather, head of employment at Marks and Spencer, suddenly found himself on the front line of a national crisis. The only way to deal with this unique situation, he says, was to take a flexible approach to furloughing:
‘We looked at our most vulnerable groups first: anyone that was shielding, anyone with a serious underlying health condition, regardless of whether it met the definition of disability under the Equality Act, anyone with childcare responsibilities would be prioritised and, in some cases, colleagues who had hellish journeys to get to their store. We furloughed 27,000 colleagues at the peak, about two fifths of our workforce, but if anyone didn’t want to be furloughed then we weren’t going to force them.’
Although the furlough scheme avoided a large swathe of redundancies, the scale of the crisis, and its unforeseen duration, have made redundancies unavoidable for many employers. M&S has just closed consultations into 7,000 proposed redundancies, an inevitable move in a retail sector that has been hit harder than most. For employers faced with this decision, making a fair and balanced assessment of employee performance is essential.
‘You’ve got to go back to an earlier period and talk to the relevant people that can attest to that colleague’s performance’, says Mather. ‘Go back and remind yourself of the work that those colleagues did before they were off on furlough, in the same way as sickness, absence or maternity leave, so that so that everyone is assessed fairly, and they’re not disadvantaged. We’ve been quite clear to point out to everyone in the redundancy consultation that the fact of furlough doesn’t mean that they’re more likely to be selected for redundancy than colleagues who have been working through the period.’
Even so, says Elizabeth McGlone, employment partner at Bindmans, the unprecedented nature of the furlough scheme, and its readiness to accommodate workers with certain protected characteristics, created a heightened need to ensure redundancy selections were taken in a fair and non-discriminate manner to avoid Equality Act discrimination claims further down the line.
‘[The question is] whether or not decision-making is based on the business need, or whether it is based on the protected characteristic. When you drill down, is a redundancy being made because the business has a need to get rid of a certain headcount? Are the decision-making criteria discriminatory or indirectly discriminatory in any way? To take a standard example, part-time workers are more likely to be women, many of whom have childcare responsibilities. If a business says it is going to get rid of all its part-time staff, it will invariably get rid of more women. This is indirectly discriminatory. From an employment law perspective, you must consider that double layer. Yes, there is a business rationale, but what’s feeding into that decision?’
Covid-related employment tribunals will be a big source of work for lawyers in the coming months. Significant backlogs in employment tribunals before the pandemic hit have only increased, and increasingly complex, novel cases are likely to be brought as a result.
‘From my perspective, and our perspective as a claimant practice,’ says McGlone, ‘the advice to employees has somewhat shifted. Delays in the tribunal are going to impact your ability to have your case heard, so if there is scope for settlement or early resolution, take it if it’s reasonable. Tribunals have taken more steps to encourage parties to engage in judicial mediation, which will dispose of cases and ease the backlog. During the lockdown period, when the courts were closed, there were a lot of shifts towards listing very quick judicial mediations. Yes a tribunal will bring about a judgment in your favour, but it also comes down to settlement and what you’re willing to accept to resolve the matter.’
A further potential source of employment-related disputes, says McGlone, comes from employees who were made redundant without being given access to the furlough scheme. ‘I remember discussing with a few employment lawyers about whether or not, if there was the furlough scheme, it would be reasonable to make somebody redundant. There was this school of thought that you shouldn’t make someone redundant because the furlough scheme was in operation, and it would be deemed unfair, but I think there will be a lot of sympathy for businesses making snap decisions in very unique circumstances. If the process was fair, then there’s not really much else that the employer could have done.’
Another serious consideration for employment counsel is how to safely reintroduce furloughed staff into the workplace. As senior employment counsel at digital media and broadcasting company VICE, one of the industry’s more unconventional outlets, Kathryn McMillan is used to dealing with novel situations, including overseeing the health and safety of VICE’s production units as a hazmat-clad journalist reported live from a Covid ward in the Lombardy region of Italy. Her role, which covers Europe, Middle East, Africa and Asia Pacific, means any approach to worker safety at VICE must deal with a chequerboard of legislation.
‘We are monitoring Covid and how it plays out in each country, looking at not only the government data but also seeing what we need to do. We’ve had architects come in and look at the spacing, the structure and the layout of our offices – each country obviously has a different spacing requirement. I’ve also worked as a part of the team to develop the production protocols, conducting a risk analysis and occupational health and safety assessment particular to each country.’
M&S may seem safe by comparison, but even there Mather has been implementing measures to protect employees and mitigate risk. ‘Office employees can carry out their own risk assessments at home, and if they need additional equipment then they can have that. If they need to come in and work from an office location they can come into our main office in Paddington, to the IT office in Heathrow, or to offices above stores.
‘For store workers, we’ve provided screens, hand sanitisers and PPE to mitigate the risk of infection. We’ve also looked at different groups of workers – the over 70s, vulnerable workers – anyone who might need to take extra health and safety measures. If we’ve got particularly vulnerable groups, we might, for example, be able to find them a role backstage rather than keeping them on the shop floor.’
Mather is also proactive in taking steps to prevent claims against M&S arriving at a tribunal, particularly in relation to health and safety and whistleblowing: ‘Our focus is about exploring the reasons for the colleague’s concerns and trying to provide a solution to that, rather than finding ourselves in a situation where someone resigns and claims constructive unfair dismissal, or we have to dismiss someone. We’re confident we’ll be able to do that.’
For claims that do progress to an employment tribunal, Kemp Little’s Dooks believes that the courts are likely to show a degree of understanding toward employers. ‘Employment tribunals will be sympathetic to the fluctuating rules around what you can and can’t do. There’s some fairly muddy guidance out there, but as I think as things progress and people get more used to the rules, that excuse may wane a little bit.’
However she says the Jobs Support Scheme may end up inviting a fresh wave of employment cases. ‘Under the scheme, an employee has to work at least 33% of their normal working hours, but the employer has to pay them those hours plus another third. I can see an employer turning around and questioning why they are paying the employee more than the hours that they’re working. If that started to impact certain protected groups being made disproportionately redundant, there might be some sort of an intervention to bring about judicial review. It’s certainly a possibility.’
The furlough scheme itself may also be subject to judicial review, adds McGlone. ‘The system may have isolated or excluded certain people. To take a group there may be little public sympathy with, barristers have been completely and utterly shafted, because they earn too much to qualify. There’s always going to be a category of people that get left out, and there’s always going to be unfairness. It depends on whether that unfairness disadvantages certain sectors of society that have protected characteristics. But it is a balancing act. There will always be people left out but any scheme was better than nothing.’
‘What day is it?’
For millions of office workers, months of working from home have made this a familiar question. With no end to the pandemic in sight, Boris Johnson has suggested that the latest set of Covid restrictions could last until March 2021. For in-house lawyers, the disruption of the last few months may become uncomfortably familiar. Dooks believes the months ahead will be a ‘source of soul-searching for employers’, especially if another lockdown raises the issue of school closures and childcare.
‘Employers kind of muddled through with that before, but if it becomes a longer-term issue some employers may be less tolerant and patient than they were the first time. It’s difficult because employees don’t have a neat solution. You’re basically reliant on the goodwill of your employer – there’s no legislation that says employers need to act reasonably in these circumstances.’
McGlone points to the mental health implications of another lockdown. ‘I’ve spoken to team members and colleagues who are despondent about being isolated. There’s also a question of training and development. I have juniors in my team that aren’t around to absorb information over the telephone, so they’re disadvantaged in that way. We may have a generation of people who aren’t as good at being client-facing as they could be because they haven’t got the skills. I haven’t seen a client since February – not that I’m losing my touch! – but managing people and their personalities is something that you learn to deal with. With isolation you’re losing an edge, and you’re losing that customer-facing capability.’
But there are positives to take from the pandemic. For McMillan, the pandemic has been a lesson in slowing down. ‘I look at my old life and think, I never want that back ever again. I was booking in friends three, four months out, or getting changed in the back of an Uber taxi, Bridget Jones-style, to have a drink with friends, then back on calls. At the weekend, I might be jetting off somewhere, but still on emails. Everything was so committed, so structured. Having everything slowed down is something I’d like to take with me. I think a lot of people will feel the same.’
For Mather, the pandemic has provided similarly edifying. ‘It may sound trite, but the most valuable lesson has been feeling like wherever we work in the business, we’re part of one team. Right at the early stage, key workers weren’t just NHS workers, but people working in food stores or delivering parcels, and the greater public awareness of the value of those jobs was really rewarding and appreciated by our people. There was a real sense of everyone in the business pulling together and making sure the stores had everything they need in order to deliver great service.’