Listen to the full webinar via our podcast
Yolk’s latest HR Insights session with Anna Denton-Jones focused on the key topics that have come across Anna’s desk at Refreshing Law Ltd over the last few months. The session also included a Q&A where we discussed a number of issues that have arisen during Covid-19 and lockdown.
Employment tribunal system update
Unsurprisingly the tribunal system has slowed down as Covid-19 has caused a significant increase in the tribunal backlog.
At the moment, for tribunal cases in Bristol, issues raised in May are now seeing dates given for January 2021 for just logistical discussions.
Cardiff is looking at less delays with a two to three month wait time.
Just remember: this can hold cost implications as additional time gives further room for more correspondence so the costs go up.
Estimated 20% have adjusted to going into lockdown
That means 80% have struggled*
*Webinar by Law Society for Mental Health Week
Don’t Forget: be kind to yourself.
HR are dealing with so many challenges at the moment from having to get to grips with furlough so quickly, to the government continuing to change the goal-posts. As HR professionals, remember to cut yourself some slack.
For your workforce, lockdown has affected many people’s mental health, and this can manifest in a variety of ways, from alcohol related issues through to anxiety. If there are existing problems, they could be exacerbated by lockdown and have a knock-on effect on performance and people’s behaviours.
Answer: The behaviour needs to be addressed. If you would act in this situation if there were no health issues declared, don’t avoid addressing the problem because they have been declared. You have a duty of care to the employees who are feeling bullied as much as you have a duty of care to the employee displaying the behaviour.
You will need to bear in mind that if someone has a condition that they are rightly protected by the Equality Act, but that doesn’t mean they can behave how they want to if it is damaging to other employees and they are contravening the organisation’s values. When you are tackling the problem with the employee, if the health condition is raised as the reason behind this, then medical advice may be required to see to what extent this condition can cause this behaviour.
If a disciplinary process is in place, pause it while you seek medical advice and get a clear understanding of the condition before you decide what to do. It is possible when this is established, when it comes to the penalty or management action, you will make an adjustment compared to someone who doesn’t have the condition eg:- lesser penalty.
Whatever happens, don’t ignore the issue due to fear of legal action later down the line related to the health condition.
The End of Furlough
There is the risk of sexual discrimination when deciding who to bring back from furlough.
There have been cases of discriminatory furlough as according to the employer the employee was “causing too many issues” due to child-care and were unfairly furloughed.
HR should be developing policies around parents needing to care for their children which gives clear flexibility. This extends to post-furlough.
For example, if a child is sent home due to symptoms and has to isolate, the parents may need to also and working from home flexibility should be given. There have also been shocking stories in the press of employers asking female workers to dress differently for video chats with clients. As we all know, this is not okay.
Another discriminatory example we are starting to see is against part-time workers. One particular case saw a manager looking to make redundancies and discussed “clearing out” the part-time team.
If this is raised, you will need to push the manager and ask them why the part-time workforce should be leaving over full-time.
The organisation has been paying them to do this role part-time already pre-Covid-19, what has changed? Is there evidence of this job not being done properly due to it being on a part-time basis?
Be fair to all staff member regardless of hours. Why should the part-time staff go over the full-time?
Hopefully a positive of the new working from home world will be that employers will be hiring more disabled employees who can remotely work.
However, there have been examples of employers bringing back an entire workforce apart from those with health conditions or disabilities which is potentially discriminatory.
If risk assessments have been put in place and it is clearly not safe for these workers, this is understandable. But you should be looking to rectify these risks as soon as possible if the rest of the workforce is back.
We have seen some cases of some employers not bringing back disabled workers and are effectively using the current economic climate as a reason to remove them from the workforce. Challenge this if you see managers doing so.
It is likely that the government assumed 70 is the age that the majority of people will have left the working world but there’s been a staggering uplift in queries regarding vulnerable workers over the age of 70 who are still in the workforce. There’s potential for these workers to not be treated fairly due to their age and being on the Covid-19 vulnerable list.
Other vulnerable groups include pregnant employees and BAME. Make sure you are including everyone within your risk assessment.
What measures is your organisation taking to protect these workers?
Unfair selection for redundancy
There is a dangerous pattern emerging of employers making their furloughed staff redundant over those who have worked throughout lockdown. If there are staff members who do the same job, with some on furlough and some not, it is not fair to just make the furloughed staff members redundant.
You should be showing you have followed a fair process should you make staff redundant.
All employees should be assessed on a level playing field together, not because some have been furloughed and others haven’t.
Health & Safety
Statutory Sick Pay
A: Employers are being put in a difficult position at that point because the government advice is to get those people back into work with adjustments to those roles although the guidance is very much work from home if that is possible.
A: We have to remember that the Doctor is filling out the note based solely on what their patient has told them and asked of them. The GP doesn’t know the business, the employee’s role or the impact on the team. The doctor’s note is medical advice but remember it is a suggestion. Ultimately it is for you to make the decision.
proven that you have tried to help.
A: Yes, as part of your systems in place you can be asking people to wear a mask and to have temperature checks if you have the equipment to do so.
A: If the employee has committed gross misconduct then strictly speaking the contract is broken and they wouldn’t be entitled to notice pay. There are concerns that if we do what the manager wants to do, what kind of precedent are you setting for future cases?
A: We recommend sending your employee to get a Covid-19 test. If they can prove that they have done the test (giving a print-out of test booking etc), you should pay the employee for that day. Obviously if that test result comes back positive they will go back onto statutory sick pay, and if negative, they can return to work and normal pay.
For any questions regarding issues raised above, or if you'd be interested to hear more about upcoming HR events and webinars organised by Yolk, get in touch.
A big thank you to Refreshing Law Ltd and Anna Denton-Jones.