Life after lockdown: employment law considerations for your exit strategy and beyond

By Emily Clark, Alison Dixon

05-2020

On 16 April 2020, the UK government announced that the lockdown would be extended for "at least" three weeks until 7 May 2020. A further government announcement is therefore expected later this week. Although the Prime Minister has just declared that the UK is "past the peak" of its COVID-19 outbreak, continued restrictions of some kind seem highly likely. Over the past six weeks, organisations have been adjusting their workforces to respond to these unprecedented times, with huge numbers of businesses grappling with the government's new Coronavirus Job Retention Scheme (CJRS) (see our overview here). Just as many people are starting to get comfortable with the 'new normal', organisations will be planning their lockdown exit strategy and starting to think about what longer-term impact COVID-19 might have on our working lives. 

Get back to work 

The government has not yet committed to a timeline for ending lockdown, but experiences in Asia and early indications from European countries such as Spain and Italy suggest that there will be a progressive relaxation of the restrictions over an extended period. Government advisers have also suggested that a policy of alternating between periods of more and less strict social distancing measures for a year may be necessary to avoid inundating healthcare services. Employers will therefore need to prepare for a potentially complex and fluid situation over the coming months. The employee communication strategy during this time will continue to be fundamental to ensure clarity of information and employee engagement.

Where it is possible for staff to return to the workplace, providing a safe place of work in accordance with employers' health and safety obligations and the latest government and public health guidance will be paramount. Where personal protective equipment (PPE) is required, employers will need to plan for the associated cost and logistics of obtaining this. Working practices and policies may also need adapting to accommodate social distancing rules. Employers may need to consider the phased return of staff: which teams or individuals within teams will return first and whether these returns should be on a part-time basis, at least initially. Additional consideration should be given to employees from vulnerable groups (such as pregnant employees and those with health conditions), the timing of their return and other accommodations, such as variations to working hours to avoid public transport rush hour, for example. 

As employees start to return to work, organisations may be looking to increase staff monitoring, such as by asking employees about symptoms and conducting temperature checks. This will of course need to be carried out in accordance with data privacy rules and the latest ICO guidance (see here for our COVID-19 privacy and data protection chart).

Supporting mental wellbeing is already a high priority for many organisations, but the uncertainty and changes to working and family life brought about by COVID-19 have led to commentators warning of "lockdown burnout" and are anticipated to have an ongoing impact on employee mental health beyond the immediate crisis. This is a good time to review the resources and support available and to publicise this to employees. This might include employee assistance programmes, technology platforms and other benefits packages to support employee wellbeing, mental health education programmes and management and peer support schemes.

The relaxation of lockdown and return to the workplace may result in a variety of other legal and HR issues which employers will need to be ready to respond to. Examples include employees potentially refusing to return to work due to concerns about their health and welfare in connection with commuting and attending the workplace. There may also be an increase in employees raising concerns about health and safety through company whistleblowing procedures. Where employees have accrued but untaken holiday during lockdown, employers will need to manage holiday requests and carry-over under the amended rules and how this interacts with any company holiday entitlement and existing company policies. Staff policies (such as those relating to holiday, sickness and travel) may also need updating. For some employers, the transition from lockdown may result in additional workforce costs due to a need to source additional labour for essential roles where staff illness, international travel restrictions or anxieties about health prevent employees attending work. 

Will life ever be the same again?

Looking to the longer-term, COVID-19 is likely to have a significant impact on the future of work, including in the following ways: 

The evolving workplace

It is widely acknowledged that global lockdown has accelerated changes in working practices that were already underway, such as the adoption of new technology to help employees connect and collaborate remotely and a shift to more flexible working patterns. As we emerge from lockdown, organisations will be assessing to what extent this should continue. Systems put in place under the pressure of crisis may need to be reviewed and staff expectations around flexible and remote working and international business travel may also have changed. 

For all their benefits, these new ways of working pose numerous challenges and risks to employers. Broader consideration should be given to what extent company policies and processes, including those relating to flexible working, appropriate communications, data security and protection of trade secrets, as well as individual employment contracts, may need to be adapted to protect the business and reflect these new and evolving ways of working.  

Strategic workforce planning 

COVID-19 and the anticipated global recession are forcing organisations to reassess their staffing requirements and consider reorganisations and potential cost-cutting measures. Employers that have furloughed employees under the CJRS will still be able to make redundancies, subject to the usual legal requirements. It is not yet clear how employers will be 'judged' for using the CJRS (the banking sector and football clubs having already received press attention for taking up the scheme) and their longer-term response to the crisis. 

Clearly, the external PR and employee relations implications will be essential considerations in any strategic workforce planning. This is particularly relevant in the context of existing trends in increased consumer and employee activism and the use of social and traditional media to speak out against employers perceived to be engaging in bad practice. The lockdown experience and increased employee interaction through social media and other technology platforms may serve to galvanise employee activism outside traditional union arrangements. These new collective dynamics may need to be factored into how employers engage in information sharing and staff consultation in the future. 

Increased protections for contingent workers

There was already a trend in the UK and elsewhere in Europe in favour of providing additional protection and clarity regarding employment status to platform and 'gig' workers. COVID-19 has hit low wage workers the hardest and the crisis has renewed attention on contingent workers, with calls for the government to introduce new protections. The EU had already adopted a Directive on Transparent and Predictable Working Conditions prior to the crisis, requiring member states to implement legislation providing minimum rights for workers, including those on 'gig' and zero hours contracts. It is not currently clear what the UK government's position on this is. However, in the post-Brexit era and in the face of global recession, the government is likely to be wary of introducing reforms that will increase labour costs and reduce workforce flexibility. 

Notwithstanding this, the possibility for reforms in this area, together with changes to the rules on IR35 (now delayed until April 2021) and the potential for the government to seek to have a higher degree of influence over and cooperation with private business generally in the coming months, will be important points to bear in mind when organisations are thinking about their future workforce strategy.

Could it happen again?

A final thought is how employers might be placed to deal with a similar crisis impacting business continuity in future, which may be as a result of another pandemic, political instability or climate change. What lessons can be learned from COVID-19 and how can organisations structure their workforces and supporting policies and processes to be better placed to respond next time? Energy will inevitably need to be spent on responding to the continuing COVID-19 crisis and adapting to operating in a new business environment but these are important questions to ask. COVID-19 has demonstrated that these are uncertain times and businesses need to be prepared. 

These topics will be discussed in more detail in our next edition of Bird & Bird Horizon Scanning in which we will consider upcoming reforms in employment law across Europe and APAC and the global trends influencing these with a particular focus on the impact of COVID-19. Further details will be published soon but please email [email protected] if you would like to be added to our mailing list to receive a copy.