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HR Advice during Covid-19

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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.


Mental Health

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.

Question: What should you do if an employee with an underlying mental health condition has started displaying bullying or aggressive behaviour recently? To what extend do we address previously declared conditions, and do we ‘cut them slack’ due to this?


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

With furlough coming to an end, there’s a plethora of issues and groups of employees to keep in mind when developing your new policies and employment strategy.
 
We’ve run through a number here, along with a few other related HR threads:
 
  • Sexual discrimination

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.

  • Part-time workers 

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?

  • Disabled employees

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.

  • The vulnerable

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

 

Risk assessments for the workplace are key – it’s surprising how many employers haven’t been communicating with their staff regarding the risk assessment. You should involve your workers in the creation of the risk assessment as it’s the environment they know well and they can feed into its creation.
 
Suggestion: rather than bringing the entire office back in one go, a better idea could be to bring back a smaller team and effectively ‘test’ the return to work with them and have them feed back on what extra measures need to be put in. Make this first group happy, then when the rest of the office return you’re more likely to have a happier and safer workforce.
 
Employers will need to take extra steps to work with their staff to avoid staff members saying they don’t feel safe to return. If it was taken to court due to the employee refusing to return due to safety concerns, you will need to prove that your organisation’s work place was as safe as possible. Ensure all emails and meeting minutes are collated to demonstrate that you have tried everything.

Statutory Sick Pay

Regulations were updated on the 6th July to say that if someone is in a bubble living with another who is confirmed as Covid-19 positive, or been told by track and trace that they’ve been in contact with a Covid-19 positive person and subsequently told to isolate, then they will be entitled to SSP.
 
It is worth publishing what the rules are to your staff members to make sure the information is out there for them, especially as local lockdowns become more frequent.

The Q&A

Q: For those previously shielding and due to return to work, if we can’t allow them to come back because of concerns of safety in the workplace, what are our options when the furlough scheme ends?

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.
 
It may mean you move people from frontline activities to something else adjusted for their condition, but if you can’t offer that, you’re in a position where you are asking people how much they want to risk their health. Employees will have to make that decision unfortunately.
 
Q:An employee has had a long term of absence following a breakdown of relationship with their manager. Their GP has issued a note saying that they require structural changes to their team before they can return to work. What obligations do we have to follow this as the employer?

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.
 
A word of advice: there is a clear breakdown between the line manager and the employee, but you could offer mediation to help repair this. It demonstrates that you’ve tried to restore the relationship. You could informally try to help and act as a mediator yourself, or enlist the help of an external mediator – if things get worse and ill-health dismissal is required you have
proven that you have tried to help.
 
Q: If somebody is living with someone who is Covid-19 positive, are they allowed SSP?
 
A: If someone is living with a Covid-19 positive person, they are allowed SSP. This is a circumstance where the person isn’t ill themselves, but are allowed SSP.
 
Q: Can employers insist people wear masks and get temperatures checked at regular intervals?

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.
 
Q: A member of staff is dismissed for gross misconduct, but the manager wants to still pay their notice pay. Should we?

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?
 
Does it  undermine the seriousness of the case for it to be categorised as gross misconduct then? Ask what is making the manager want to treat it differently to a standard gross misconduct situation.
 
Q: Should employees be paid their normal company sick pay?
 
A: Firstly, is the employee covered by SSP? That will then dictate whether they are entitled to it initially.
 
For company sick pay above and beyond that typically your contracts say ‘if you are sick we will pay you X amount’. If someone is isolating because they’ve been told to or they are quarantining due to holiday, they are not sick. They are not automatically going to get company sick pay.
 
You could decide to be generous but remember we are in this for the long haul.
 
Q: What does an employer do if an employee turns up to work because they don’t want to lose their pay?

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.
 
Tip: rumour is if you book a test at 8.30pm at night you can get in more easily than earlier in the day.

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