Managing employment issues during and post-pandemic – some considerations

It is becoming increasingly clear that restrictions on how we work and live will remain in place for some time as we continue to respond to the impact of Covid-19.  Permanent remote working or blended home and office working is likely to become more widespread.

In this changed environment, employers will need to give some thought to how they will operate their policies and procedures, as it may no longer be appropriate to conduct these in the same way as before the pandemic.  Furthermore, Employment Tribunals are unlikely to look favourably on employers who use Coronavirus as an excuse to skip stages of their policies or disregard them altogether.

This article highlights key areas for consideration when following the most common employment policies and procedures, and over the next few weeks, we will be releasing similar guidance which is specific to certain scenarios and employment issues.

General guidance for all meetings or hearings that form part of a policy or process

• Employers should talk to employees and other attendees about meeting arrangements in advance and should aim to reduce the number of people physically present or plan to hold the meeting remotely, where Government or health guidance remains in force
• If a remote meeting is being arranged, check that the attendees can all access the software required, and ask them to test their equipment before the meeting begins
• If the employee has the right to be accompanied to a remote meeting, then ensure their representative can attend and if necessary consider giving more time for practical arrangements to be made
• Ensure that any evidence or documents to be discussed at the meeting can be seen by all attendees – this might mean checking to ensure that the software you are using allows documents to be displayed, or making sure that information is circulated in advance
• Consider whether disabled attendees need reasonable adjustments – if the meeting is remote then this might include ensuring that they can access the meeting, see the screen, hear participants etc.  They might also need more frequent breaks or more time to absorb the information if it is not being delivered face-to-face
• Plan for breaks – video calls can be very draining for everyone so plan for regular breaks during meetings, particularly if they are expected to last for a long time
• Establish good etiquette at the start of the meeting – for instance, request that attendees mute themselves when they are not speaking, that distractions are kept to a minimum, and that regular checks are made to ensure that everyone can still see and hear each other
• If you can, conduct the meeting during the employees’ normal working hours, being mindful of any furlough, flexible working or other arrangements that might have been agreed upon over the last few months
• Wherever possible, webcams should be encouraged to compensate for the lack of face-to-face contact and enable full participation and engagement.  If attendees are reluctant to use their cameras, you could agree that they only have to use them when speaking, or just at the start and end of a meeting.  It is also possible to blur or change the background to a video call on some platforms, which might make attendees more comfortable
• Be aware of the potential for remote meetings to be recorded without consent.  This is not normally necessary if a notetaker is present or if there is another means of agreeing on what was discussed.  If your policy does not permit meetings to be recorded, you should remind attendees of this at the outset.  If the employee asks for the meeting to be recorded and you grant the request, then ideally the recording should be made by the chairperson and the file should be shared with the attendees afterwards.  You will need to think about how long the recording will be stored and who will have access to it to comply with GDPR legislation.  You could consider transcribing the video after it has been recorded.  Covert recordings may still be admissible in Employment Tribunal claims so employers must take care to run the meeting appropriately in any event
• In all cases, ensure there is a clear summary at the end of the meeting to confirm what has been discussed and any next steps, to minimise misunderstandings.

Disciplinary and Grievance Processes

• Employers must not put off dealing with conduct issues or grievances – concerns must be dealt with as soon as they arise to avoid issues escalating, and to ensure that all employees are treated fairly and consistently.  There may be some limited circumstances when employers would choose to delay starting the process, for example if someone is unwell, or does not have the technology or other means to participate.  Employers should seek agreement for any delays, communicate the reasons clearly, and aim to keep timescales short
• The Government has not provided any specific guidance about whether employees on furlough can take part in disciplinary or grievance meetings/investigations.  Employers should be cautious about this because they risk having to repay the furlough grant if the employee is deemed to have “provided services for your organisation” which could reasonably include participation in these meetings.  We recommend taking employees off furlough for the period of time that you need them to participate
• Where an investigation is required, the investigator should think about how they will gather evidence and who they will need to speak to, bearing in mind that some office locations may be closed and witnesses may be furloughed or working flexibly.  It may be necessary to allow more time for an investigation to be completed for these reasons, although long delays should be avoided
• When planning meetings and sending remote invitations, double-check that invitations are sent to the right people, and that there is a mechanism to ensure that only people with the authority to join the meeting can do so – Microsoft Teams, for example, offers a ‘lobby’ feature which allows the person leading the meeting to admit attendees one by one
• Ensure that there is a way for separate discussions to take place if needed, for example between an employee and their representative during an adjournment.
• Investigators or those chairing meetings remotely should ensure they project a positive image of the employer at all times and should avoid dressing informally unless this is part of the workplace culture
• Employers should consider employee wellbeing when delivering the outcome of disciplinary or grievance processes, as employees may be completely alone after the meeting has ended.  If the employer has concerns about an employee’s wellbeing, they might consider making less formal contact after the meeting to check on their welfare, or could consider signposting them to other sources of support which might include an Employee Assistance Programme or Occupational Health provider, if there is one

Capability Issues

• Performance concerns should continue to be raised where they exist, to avoid situations where performance deteriorates further and becomes harder to deal with
• In light of the changes to how we are all working, employers are advised to think carefully about their rationale before raising a performance concern.  Some key considerations are:
  • How will performance targets be measured if the employee (or their line manager) are working remotely?
  • Does any software that the employee uses work differently on remote computers, and could this be the reason for the performance concern?
  • The productivity levels of the rest of the team compared with the employee – if general productivity levels have changed, it may be unfair to only deal with one employee
  • Whether the employee has any disabilities, health conditions, caring responsibilities or other circumstances which are affecting them at the time that the performance concern arises.  Employers may need to seek Occupational Health or other professional advice in these situations
  • Employee wellbeing – it is sadly very likely that over time many employees will have to deal with the illness or loss of someone close to them as a result of the pandemic, or with the stress and uncertainty of financial and social change.  They may also have become unwell themselves or may have concerns about what the future holds.  Domestic environments (particularly where it might be difficult to concentrate, or where domestic abuse may occur) are also a factor for consideration.  These might explain a period of poor performance and so employers should approach the problem sympathetically if they suspect that outside factors have contributed, and should plan to offer support rather than punitive action in those circumstances
  • Whether employees have all the necessary equipment, training and support they need to perform their duties in a different way.

Absence

Normal attendance levels are likely to be affected by pandemic-related absence.  Some organisations will see other absence reasons reduced as working from home may influence how able employees feel to attend work without having to travel to the office.  Others may see an increase in absence both from employees that contract the virus and from those who experience stress, anxiety or the onset of other conditions as a result of the situation.  When managing absence that has become a problem, employers will need to consider:

• How much of the absence is related to Coronavirus or the impact of the pandemic.  Employers may want to consider setting aside periods of Coronavirus-related absence from their normal trigger points, especially if an employee contracted the virus or was told to self-isolate.  Not doing so may mean that employees are less likely to follow instructions to isolate or seek treatment in the future and this could put their health and those of other colleagues at risk.  If employers are reluctant to exclude absences related to Coronavirus, the alternative could be to run the initial informal stages of the process for a little longer, to allow time for a recovery.  Whatever they do, employers should treat all employees in this situation fairly and consistently
• Whether attendance is being affected by changes to the employee’s caring responsibilities, the death or illness of family or friends, domestic situation, or their ability to work successfully from home.  Employees in this situation may be entitled to other types of leave instead of sick leave, including unpaid dependents leave, compassionate leave, annual leave etc.  Employers should check their policies carefully and consider offering support, the opportunity of other suitable leave types or having a discussion about flexible working arrangements if the disruptions are expected to be relatively short-lived
• The impact of the pandemic on existing health conditions, and the ability for new health conditions to arise as a result.  Employees with pre-existing health conditions or disabilities may find that these are exacerbated by the pandemic – not just if they contract the virus itself but also from other less obvious factors such as loneliness, lack of exercise and longer waits for medical assessment and treatment.  Employers should consider seeking Occupational Health or other medical advice to establish an up-to-date medical picture if the pandemic is a factor in the absence.   Additionally, employees who already have a disability may require more, or different, reasonable adjustments than they had before in order to keep working if their condition has changed
• Whether they have done all they can to make the workplace a safe and appropriate place for employees to be.  On a practical level, this means following any government guidelines relating to office layout, cleaning and PPE.  However, there is also a need to ensure that employees are not feeling overworked, particularly if some of the workforce has been furloughed or made redundant.  Finally, all employees will cope differently with change and one response may be non-attendance.  Employers should take care to communicate with their staff, encourage open dialogue and endeavour to support employees who have a genuine concern about being at work, and should only begin formal processes where there is no other option.

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