As the country emerges from lockdown and the government guidance to work at home is lifted, employers will be faced with a new dilemma – how to manage their workforce in the post-COVID era.
No matter what approach employers take in relation to post-pandemic working arrangements, there are some key challenges that may need to be addressed. In particular:
- Discrimination issues. Employers should be mindful that blended working arrangements could (in some circumstances) lead to a risk of indirect discrimination claims (race, age, gender etc.). Risk assessments should be carried out to establish (i) the impact of such working models and (ii) any particular groups of employees who are most at risk of being disadvantaged by a such a policy.
- Flexible working requests. It is likely that an element of the workforce will have benefitted significantly from working from home during the pandemic and will be keen to continue to do so. Employers may, therefore, be faced with a significant number of flexible working requests.
- Contract or policy. For employers who adopt blended working, contractual changes should be approached with caution. Instead employers should consider having a blended working policy that is subject to regular review rather than changing contracts at this stage. Employers should retain a residual contractual power to require someone to come into the office.
- Unvaccinated employees. Careful consideration will need to be given as to whether it is appropriate to stop those who have not been vaccinated from entering the workplace and employers should consider other alternatives. A policy of compulsory vaccines is unlikely to be lawful.
- Discipline or dismiss for refusing to be vaccinated. Although ACAS guidance suggests that a refusal to be vaccinated could, in some situations, result in disciplinary action, this would depend on whether vaccination was necessary for an employee to do their job. It is unlikely to be relevant to office workers.
- Employer testing. Workplace testing is difficult to put in place. Instead, employers may want to encourage employees to undertake home testing and to avoid attending the office if they test positive.
- Vaccination and testing data. In order to contain and control COVID within the workplace, many employers will be keen to keep vaccination and testing data. From a GDPR perspective, this creates its own challenges as the mere fact that someone has or has not received a vaccine or any test results will constitute “special category data” concerning health. Employers will need to have a legitimate interest for processing vaccination or testing data. The Information Commissioner’s Office has said that employers should have a “clear and compelling” reason for processing vaccination status data and the same would apply to test data.
- COVID secure measures. For the time being, most of the COVID-secure measures employers introduced at the start of the pandemic are likely to remain in place. It is likely that this will change over time, particularly as the vaccine continues to be rolled out.
