3 post-pandemic challenges for HR
Despite the UK edging closer to freedom from lockdown, for employers and business owners, there are inevitably more changes and challenges ahead.
As restrictions lift and routine gradually returns for the general population, employers must now contend with a number of policy and procedural changes, all whilst attempting to strike a healthy middle ground between serving the needs of the business post-pandemic and keeping employee engagement high. Of course, there will also be ongoing employee relations issues to navigate, such as weaning your workforce off furlough, managing vaccination and testing, and dealing with resistance from staff surrounding the return to work.
Indeed, the ‘HR hangover’ resulting from the pandemic is likely to be felt for some time. Here are three key issues that may cause headaches for HR teams in the coming months.
With coronavirus having resided in the UK population for more than a year now, business owners will no doubt already be familiar with ‘long COVID’ – a more extreme and debilitating iteration of the virus, with the potential to leave patients unwell for several months or even years.
A BBC article published towards the end of last year gave a broad overview of the condition. It cited “crippling fatigue” as the most common symptom, with other manifestations including “a cough that won’t go away”, “joint pain, “hearing and eyesight problems” and “damage to the heart, lungs, kidneys and gut”.
As is the case with all medical conditions, this should be a serious consideration for HR, especially as other conditions such as chronic fatigue syndrome and fibromyalgia – which are comparable in terms of their symptoms – have in the past been held to constitute a disability in the eyes of the employer.
Under Section 6 of the Equality Act 2010, there are four stages that need to be met for a condition to amount to a disability.
- Does the employee suffer with a recognised physical or mental medical impairment? That is a question of fact but normally fairly easy for the employee to establish.
- Has that impairment lasted more than 12 months or is it likely to do so? Again this is a question of fact where medical evidence will be important. Conditions that come and go, like chronic fatigue syndrome, would potentially count.
- Does the impairment affect someone’s ability to carry out normal day-to-day activities? Note the reference to ‘day-to-day activities’, so the ability to carry out someone’s job is not a relevant consideration. Government guidance on matters to be taken into account in determining questions relating to the definition of disability, though almost 10 years old, gives a range of examples of how an impairment might impact someone’s normal day-to-day activities.
- Is the impairment substantial? This is key. Hundreds if not thousands of medical conditions may impact someone’s ability to carry out normal day-to-day activities, but is that impact substantial? This is a relatively low bar as the effect only has to be more than minor or trivial. The government guidance contains more info and examples.
On this basis, while each case will be fact-specific, it is likely that the long COVID will be treated similarly to the long-term illnesses mentioned above, especially as many medical practitioners are recognising long COVID as a legitimate condition.
James Tamm, Director of Legal Services at Ellis Whittam, explains: “In reality, this test isn’t a difficult hurdle for employees to overcome. Practically, you tend not to get into this sort of detailed analysis and would instead defer to an OH or GP report and they are usually pretty generous towards employees – as are Tribunals in this regard. They are normally pretty willing to find that a genuine substantial condition is a disability rather than let the employer off on a technicality.
“Instead the ET would be much more focused on the treatment the employee has been subjected to and if that is adverse compared to non-disabled employees, the reasons why that treatment has been handed out.”
In any event, employers must be sensitive towards this issue, remain alert to any changes in the employee’s behaviour or performance that warrant intervention, and approach any such concerns carefully. In order to ensure that employees remain open and transparent about long COVID, managers should be encouraged to communicate to individuals that the company has their best interests at heart and intends to support them wherever possible.
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Annual leave and benefits
Businesses hit hardest by the pandemic have had to pivot and adapt in almost every way, and areas such as employee benefits are no exception.
Annual leave is perhaps the most stark example. While previously employees could not, for the most part, carry over their holiday entitlement between years, that has now been changed due to the disruption of the furlough scheme.
Employees have been awarded the right to accrue holidays during their temporary leave and, as a result, will now be able to carry it over into the next two leave years. This was stipulated in the government’s latest amendment to the Working Time Regulations.
Whilst this will no doubt be welcome news to employees, employers must now consider how to deal with this build-up of excess leave. Because this is historically a hotly contested area among employees (and one that often gets taken to Tribunal), employers may feel that the safest recourse would be to allow employees to carry over the entirety of this unused leave on top of their next lot of standard annual leave allowance.
You may wish to think tactically about when would be best for employees to take this time off, perhaps during your initial reopening phase when demand is lower or during your usual quiet season. Don’t forget, you can force employees to take leave, provided you give twice the amount of notice as the period of leave you require workers to take, i.e. two weeks’ notice to take one week’s leave.
Similarly, many businesses have been forced to adapt benefits packages due to the pandemic, whether it be on account of financial hardship, or simply because the requirements of employees have shifted so drastically due to the new working conditions.
With this in mind, employers will now be reviewing this situation, with a view to either ‘unfreeze’ certain benefits, or adapt them once again in line with the return to office life. With businesses having been closely scrutinised over their handling of the pandemic, this may prove to be a critical area when it comes to post-COVID retention.
A dispersed workforce
Last but by no means least, with a new precedent for working having been set as a result of the pandemic, it is critical that organisations now establish a permanent approach that is both diplomatic and effective.
Our recent survey into the homeworking versus office debate highlights the huge difference of opinion between workers, and the scale of the conundrum facing employers. Upon being asked if they would quit if made to work from home full-time, around 19% of respondents said ‘yes’; however, 20% said they would quit if they couldn’t work remotely.
Though just a snapshot, the results of this survey indicate how much employers stand to lose from getting it wrong and how hard it will be to devise an approach that works for most, if not all. Unfortunately, it would appear that there is no one-size-fits all solution. The pandemic has served to remind people that their needs can be met in different ways, and as a result, many organisations are pledging to adopt a ‘hybrid’ model moving forward.
However, some are standing firm. Investment bank Goldman Sachs, for example, has rejected this idea, with CEO David Solomon calling it an “aberration”. Rather, the bank has stated that it will be returning all of its staff to offices as soon as possible.
Only time will tell whether hybrid working is the right approach; however, it is highly likely that if organisations refuse to adapt to the changing times, they will forfeit talent to their more flexible competitors.
Speak to a specialist
At Ellis Whittam, we take the pressure off busy businesses and hardworking HR teams through personalised HR and Employment Law support. Whether you need expert help executing your post-pandemic plans legally and effectively or you’re facing a specific employee situation that you’re not sure how to tackle, call 0345 226 8393 or request your free consultation below for specialist advice and support.
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