For many, work has been very different over the past year – gone are the commute to the office and face-to-face meetings in favour of Zoom video calls and a makeshift setup in the spare room. We have had to get used to a new norm of working remotely, but the reality is that some form of remote/hybrid working is likely to be here to stay once restrictions are fully lifted. So, how do we ensure the wellbeing of staff once restrictions have been lifted?
Remote and flexible working
If remote or hybrid working is here to stay, then there are some challenges ahead. Temporary fixes have been in place to facilitate working from home which may not have been fully compliant with health and safety legislation or guidance from the Health and Safety Executive (HSE).
Employers currently have a contractual obligation to care for their staff, but they also have a statutory duty to do so under the Health and Safety Act at Work etc. Act 1974. In essence, this requires employers to ensure there is a safe place to work at home too. Ensuring the workspace is safe is more challenging when someone works at home. Employers could require their employees to truthfully complete a risk assessment to confirm it is safe to work remotely, or they could carry out a video assessment themselves. Of course, the best option is to physically check and assess the space, but there is no statutory obligation on an individual to allow an employer to video their home or enter their premises, so employers would have to rely on contractual obligations to permit this. Otherwise, the employee could refuse entry. This is one area where some change is required by the government and HSE to clarify what an employer is obliged to do and what staff must agree to.
The provision of equipment has also become a thorny issue. Again, temporary fixes are not permanent solutions, but permanent solutions can be costly. Should an employer be liable for providing all equipment to enable staff to work at home as they do in the office? If an employee has a disability requiring special equipment as a reasonable adjustment, then the employer is likely to be legally obliged to provide the equipment. However, if employees without disabilities are left to select and pay for their own equipment is there a personal injury claim ahead arising from physical damage caused by poorly selected equipment? Clarity around who is liable and for what will not only address this, but also avoid unrest in the workplace with staff raising grievances and potential future claims.
All work and no play?
Over the last year employees have appreciated the positive benefits in terms of cost and time savings from not having to do the daily commute to work. However, some have also raised concerns around the additional time they spend at work – starting early and finishing later when at home. There is the blurring between private life and work which means many have felt unable to disconnect from work easily when they live and work in the same place. There have also been concerns around isolation which remote working can create and the lack of interaction with others can negatively impact on collaboration and productivity.
The Working Time Regulations 1998 do require employers to ensure that staff take rest breaks but that can be difficult to regulate when working at home. The increasing use of emails and messaging via social platforms such as WhatsApp has further exacerbated the problem, creating greater risks of harassment claims too. This has been an issue that has been building up for some time with employers like Goldman Sachs facing challenges over working time, out-of-hours emails and travelling time.
Under the Working Time Regulations, every week a worker should not work more than 48 hours, and in addition, they should have a minimum daily rest period of 11 consecutive hours per 24-hour period. Every worker should have a minimum uninterrupted rest period of 24 hours in each seven-day period, as well as the 11 hours' daily rest.
France became the first EU nation to introduce the right to disconnect in 2017, in addition to its limit on the working week of 35 hours. Other EU countries have followed its example with Ireland being the latest country to introduce a Code of Practice in 2021 to give employees a better work-life balance.
Some employers have acted voluntarily without being required to do so and decided to introduce options to delete new emails while on leave, with some blocking emails being received after 6pm.
The European Parliament has now approved a resolution to introduce a Directive to put in place a legal framework that will empower employees to disconnect from phone calls, emails and other messages out of hours. Will the UK follow suit?
At this point there is no mention of this being put in place in the UK. However, there has been some suggestion that flexible working will be become the default position to facilitate hybrid working. The Queen’s Speech in 2021 stated that “measures will be brought forward to encourage flexible working, to introduce the entitlement to leave for unpaid carers”.
Looking after mental health and wellbeing
COVID-19 has had a significant impact on bringing mental health and wellbeing to the forefront. Clearly this inter-relates with working hours and location of work too. The government may decide to place a greater onus on employers to be more proactive in caring for staff. It may introduce a requirement to have trained mental health first aiders, in the same way employers are required to have trained first aiders. At the moment, the government is relying on a voluntary response to this.
With the move back to the workplace and the anticipated recurring nature of COVID-19, changes in sick pay could be ahead with the introduction of a higher minimum payment. Smaller employers may be able to reclaim some elements of sick pay as they are currently able to do for COVID-19 related absences.
Matt Hancock raised the potential for sick pay to be reviewed. With the new Statutory Sick Pay (SSP) at £96.35 a week it acts as a disincentive for employees to remain at home if they are sick. However, it has been suggested that this is being blocked by the Treasury, which expressed concern over the extra costs employers would incur as a result.
SSP in the UK is one of the lowest amounts of sick pay offered in Europe. Previous research conducted by the TUC in September 2020 suggested that this sum was not financially viable for many workers to live off. The research showed that the average worker self-isolating for two weeks on SSP would lose over £800 across this period. In addition, almost half of workers surveyed (43%) stated they would have to go into debt or not pay bills if they were on SSP for two weeks. After the Chancellor’s Budget, the TUC called for SSP to be raised to £330 per week in order to match the current real Living Wage and extend it to include the two million low-paid workers currently excluded from SSP.
The future
At the moment, what appears to be certain is that we will have to live with COVID-19 and other viruses in the future and find ways to cope with the impact of it on work and wellbeing. The benefits of flexible working have no doubt been recognised both in benefiting employees’ wellbeing but also in coping with the necessity to work remotely if required in the future. However, if remote or hybrid working are to become permanent solutions there are changes required to make it work in the UK.
Pam Loch, Employment Solicitor and Managing Director of Loch Employment Law. Pam.loch@lochassociates.co.uk