Employment Law Focus: Flexible and agile working


The Covid-19 pandemic will undoubtedly trigger an increase in the use of flexible and agile working. HR teams must quickly grapple with the risks and act accordingly. 

In this episode, we look at:

  • The right to request flexible working, and whether this goes far enough (compared to countries like Finland); 
  • The grounds for refusing a request, and whether this will be harder moving forwards; 
  • The risk of claims relating to indirect sex discrimination, health and safety (both mental and physical) and protected characteristics; 
  • Whether remote surveillance of employees is legal, and how to manage the risks; and 
  • The need for a robust approach to data protection and information security. 

We also look at what recent news stories have taught us about the wide scope of equalities protections and the need for a dress code for virtual meetings.  

In our listeners’ questions, we discuss the use of personal devices for work purposes when working remotely and the expected rise in whistleblowing claims as a result of the pandemic.

Send us your questions for the next episode – email emplawpodcast@tltsolicitors.com or tweet us using the hashtag #TLTemploymentpodcast and tagging @TLT_Employment

Transcription

Jonathan Rennie:

Hello, and welcome to Employment Law Focus. I'm Jonathan Rennie, a partner and a member of TLT’s UK-wide employment team. And I'm joined by Leeanne Armstrong, a legal director in our Belfast employment team.

Leeanne Armstrong:

Hello.

Jonathan Rennie:

And Sarah Skeen, an associate in our Bristol team.

Sarah Skeen:

Hi.

Jonathan Rennie:

So we're all very much multi-jurisdictional today. Now, for today's topic: some people have been doing it for a long time, others have only just started during the coronavirus pandemic, but many more will be doing it in the future. We're of course talking about flexible and agile working.

Sarah Skeen:

Flexible or agile working has been a fashionable buzzword for a number of years. But due to the pandemic, huge numbers of the UK workforce are now working remotely or from home. According to the Office for National Statistics, 5% of the UK workforce was working from home in 2019, which rocketed to nearly 50% in April 2020. In fact, we're all recording this podcast remotely. 

We know some organisations are thriving in the circumstances, and despite security concerns, Zoom recently announced that it registered 300 million daily Zoom meeting participants, which is an absolutely incredible figure. 

The platform has gone from being relatively obscure to a place where even the least technological of people are living their lives, whether that's at work, family gatherings, Zoom pub quizzes or cocktail nights. Although I should just probably add that the hangover on virtual drinks is still very real.

Jonathan Rennie:

Yes, and getting back to the working world… In this episode we're going to discuss flexible working more generally, and how employers will need to plan for and respond to its inevitable rise in popularity.

Leeanne Armstrong:

It's obviously not a new thing, but the mood music has changed. Having been seen as something akin to a perk, with the assumption that there would be employer pushback on requests to work flexibly, it now seems to be becoming a more positive benefit with employers pushing for flexible working practices. 
I think the lockdown has shown many employers that remote working doesn't have to impact on productivity, but also that there could be a longer-term cost saving benefit to not having so many people based in the office all week. 

And employee attitudes about how and where they want to work are changing too. Employees may quite understandably be asking, why would I pay a premium for a property close to city centre offices, when they might only be going there for a couple of days a week or perhaps not even needed at all, or just on an ad hoc basis.

Sarah Skeen:

And actually when this is coupled with a growing sense of unease around living in densely populated areas, and the recent shift in focus towards home life over social life, that picture of a cottage with a vegetable patch and a view is looking a little bit more attractive, isn't it. 

Jonathan Rennie:

Definitely. Now, we're going to look at how employers can use flexible working effectively whilst ensuring employees are suitably protected. 
There are lots of risk areas here. Working patterns can obviously be quite a sensitive topic, especially because employees will probably struggle to maintain a good work life balance when they're working from home and everybody has their own situation and needs of course. 

Issues around discrimination and physical and mental wellbeing are also likely to come up. So for this to suddenly become the norm is going to put enormous pressure on HR teams. But clearly, the right approach can also add a lot of value to the business. 
Before we delve into this topic, there have been some interesting employment law news stories that we wanted to touch on very briefly.

Leeanne Armstrong:

An Italian lawyer, Carlo Taormina, has recently lost his appeal in the European courts. Mr. Taormina was sued personally, after talking on the radio about his aversion to hiring gay people. This prompted a lawsuit from the Lenford Network, who are an Italian non-profit organisation. He lost his court case and he was ordered to pay 10,000 euros, but he appealed the decision. 

His appeal has now been rejected. What's interesting about this particular case is that a claim was successfully brought, even though the law firm wasn't hiring; there was no victim as such. Nobody complained of having their application for a job at the firm rejected because of their sexuality.
However, as Taormina was a senior member of a law firm with power to influence hiring and firing decisions, it was hailed that the comment was more than just his personal opinion, but job discrimination. 

So this actually shows a very wide scope of the equality's protections – something to bear in mind in terms of educating your workforce, and before employees are allowed to broadcast their views in public, whether that's on the radio or in a written article or, indeed, in a podcast.

Sarah Skeen:

Some amusing stories have also emerged concerning online meetings and hearings. One that particularly caught my attention was a meeting with judges in Brazil, where judge Carmo Antonio de Souza forgot to put his top on. And in America, one judge decried the informal approach attorneys have been taking, which included one appearing to still be in bed underneath the covers. 

Possibly time to draft up a remote working dress code for Zoom meetings. And who'd ever have thought that that was needed, and to include a minimum strict requirement to wear clothes (at least from the waist up, I suppose).

Jonathan Rennie:

Well, yeah. So I've been wearing some questionable Japanese kimonos trousers at home, Sarah, that thankfully are not visible on Zoom calls or podcasts.

Leeanne Armstrong:

On a more serious note though, you might want to consider ensuring that employees are presentable in video calls and meetings. This will be important, particularly in many white collar industries and to preserving the professional image of a company. As the face of the business, a dressed down employee may give the wrong impression to clients and customers. 

Dress codes for online meetings might be slightly more relaxed than in the office, but it might be a good idea to have some form of protocol around how employees should present themselves on a video.

The value of this – as with any workplace policy – is just to make sure that your employees understand what is expected of them and the potential consequences of not adhering to it. Could it result in disciplinary action? If so, this needs to be clearly stated in the guidance that's issued to employees.

Jonathan Rennie:

Yes. And what of the fraught topic of what employees have going on behind them during video calls? We've heard several stories of people being judged for their choice of background. As Michael Gove and his wife Sarah Vine found out to their cost, having what many people would see as a questionable book on display over your shoulder can set Twitter ablaze. 

And what about an unmade bed or a messy kitchen in the background? Should employers be considering the reputational risk of letting employees “set up shop” so to speak with any background of their choice?

Leeanne Armstrong:

I think also it's not too farfetched to say that there could be legal risks also, if confidential or sensitive documents are visible on a Zoom call. I fully expect that we will see that as an issue that develops over the coming weeks.

Sarah Skeen:

And given the amount of time and money that goes into presenting just the right corporate image of offices, it seems an emerging area of risk. 
Aside from the potential branding issues, what if an employee's colleague gets offended by, say, a piece of artwork on display. Is one person's notion of a tasteful nude another person's pornography? Should people be considering a corporate policy on backdrops? I certainly know that some employers have disabled the Zoom function that enables beach scenes or Star Wars images to be your backdrop.

Jonathan Rennie:

Perhaps this is something that we will see play out as we enter into this next return to work phase of the pandemic. But in the meantime, it would definitely be worth giving some thought at least to your approach to online dress codes and suitable meeting backdrops.

Sarah Skeen:

There have been reports of major companies wanting to use remote working indefinitely, or at least to offer it as standard going forward. This also offers companies the opportunity to recruit worldwide rather than focus on hiring solely those based within a close proximity of their offices. 

There will be consequences to this approach though, as bosses seek the best talent at a cheaper rate. Why pay someone a London or San Francisco salary, if an individual can do their job from home in a city where the rate of pay is significantly lower? This could severely impact employment as the heads of the biggest companies fight over the best, but cheapest employees across the world.

Jonathan Rennie:

Yes, I'm definitely expecting some interesting and unexpected developments in how companies manage that recruitment process, Sarah. 
Before the pandemic hit, flexible working was mostly used by working mums and perhaps more senior employees, enabling them to balance their work and personal commitments. Some employers may currently operate informal or agile working arrangements within specific teams or across their business, which allow employees to work from home on an ad hoc basis. 

This might provide flexibility to allow teams to agree a day or perhaps two in each week when they can work from home. Those days may be unlikely to be fixed or guaranteed from week to week and will be subject to line management agreement. 

This is obviously quite different to a formal flexible working request, which if granted would see a permanent change to an employee's contractual terms, whether that be in respect of areas of work, salary or place of work. 

In terms of flexible working, clearly there are various options – from job sharing, part time and compressed working hours to flexitime, annualised hours and of course, working from home.

Leeanne Armstrong:

Yes, Jonathan and the first challenge comes with the mechanics of getting these alternative ways of working in place. Up until the start of the pandemic, it was usually employees who initiated a request for a flexible working arrangement. But as we ease out of lockdown and offices reopen, employers could see an increase in these, particularly as employees continue to try and balance their caring responsibilities. 
So it raises questions such as, how does an employee apply for flexible working and how should an employer deal with these requests?

Sarah Skeen:

Well, any employee can apply for a flexible working pattern at any time. But employees have a statutory right to apply for flexible working if they've worked continuously for the same employer for the last 26 weeks. The right to request flexible working doesn't apply to some categories of workers though – so for example, agency workers. 

Importantly, this is a right to request flexible working only, and to have that request considered. It's not actually a right to be granted flexible working. This raises the interesting question of whether a right to request goes far enough, in a society where the demand for flexible working is growing.

Jonathan Rennie:

Certainly in certain countries, the right to work flexibly has been embedded into working culture for decades. One of my favourite countries, Finland has had legislation in force since 1996, which gives employees the right to amend their working hours to allow them to change their start and their finishing times by up to three hours. 

And even going one step further, they will this year implement legislation, which gives most full time employees the opportunity to choose when and where they work for at least half of their working hours. So the 40 hour working week would not change, but it would offer increased flexibility.

Sarah Skeen:

The statutory process for flexible working is pretty straightforward and not overly onerous. The first step is that an employee writes to the employer requesting a flexible working pattern. The employer then considers that request and makes a decision within three months (or longer, if agreed with the employee). If the employer agrees to the request, then they change the terms and conditions in the employee's contract. If the employer disagrees, they write to the employee, giving the business reason for the refusal. 

There are eight prescribed reasons for refusing a flexible working request, and we'll talk through these later in the episode. But they cover pretty much all the usual reasons an employer might turn down a request, such as an inability to reorganise work or for cost reasons. 
In a nutshell, if you as an employer have a sensible objective reason for refusing a request, it is likely to fall within one of the statutory reasons for refusal.

Leeanne Armstrong:

And Sarah, if you're in Northern Ireland as an employer, it's important to note that a more rigid statutory procedure applies to the consideration of a flexible working application, with strict timescales for dealing with each component part of the process. 

So an employer will have 28 days from receiving an application for flexible working to hold a meeting, to discuss the request. They will then have 14 days from that meeting to communicate the decision. A further 14 days thereafter will be given to the employee to appeal the decision. And there will be 14 days then for the employer to set up an appeal meeting, and a further 14 days after that to communicate the written outcome.

Jonathan Rennie:

So to be clear, the timescales for considering a request for flexible working are not nice to haves. Unless you agree any extension to the time period with the employee, you could actually be faced with legal proceedings for failing to comply with the flexible working regulations. And a tribunal can award up to a maximum of eight weeks pay. 

Importantly, this can be pursued as a standalone claim. And for those listeners who think that a penalty of eight weeks pay for failure to deal with a flexible working request is a small penalty, I have to say that my tribunal experience shows that such employer lapses are often factored into wider claims, such as constructive dismissal. And so it's important to manage the requests fairly to avoid knock-on consequences. 

The three month period ought to be a sufficient period to manage these requests, which tend not to be overly complex and often have been discussed informally before a formal request is lodged. Indeed, our recommendation generally is to try and agree these matters informally, as it clearly helps establish trust and good employee relations.

Sarah Skeen:

And moving forward it might actually be much more difficult to deny requests for flexible working. If, for example, an employee has shown over the last few months that they can work from home and maintain productivity levels, then on what reasonable grounds can the employer refuse? Again, we'll look at grounds for refusing a request shortly.

Leeanne Armstrong:

I think one case that demonstrates a really good example of how not to handle a flexible working request was a case brought against a large supermarket chain a few years ago. The case concerned a delivery driver who wanted to change his working hours. He didn't work Wednesdays and Sundays, but also wanted to have the weekend off due to child care responsibilities. 

The employee wrote a flexible working request. He made several attempts to submit it via several different people who then claimed either never to have seen it, didn't accept it, or initially said he would receive a response but then claimed never to have seen it. This was despite the company's policy saying that flexible working requests did not have to be in writing.

More than five months later, he was eventually told at a meeting that his request was declined due to there being no Wednesday shift available. He would be able to drop the Saturday shift and work overtime. No right of appeal was given.

Sarah Skeen:

As a result of the length of time it took to deal with the employee’s request, as well as no right for appeal being given, the employee made a claim for breach of the flexible working regulations and it's those regulations that contain the statutory right to request flexible working. 
The employment tribunal upheld the employee's claim, as the request hadn't been dealt with in a reasonable manner or timeframe. The managers had also failed to adhere to the ACAS code of practice in respect to flexible working and weren't familiar with their own policy. The employee was therefore awarded eight weeks’ pay.

Jonathan Rennie:

This case highlights the importance of being aware of internal policies, and complying with timeframes both under the statutory regime and also under internal policies and procedures. 

Managers need to be trained to recognise a request for flexible working and how to deal with it, or where to direct that request if they can't deal with it themselves. Requests should be dealt with in a timely manner and in discussion and consultation with the employee. Any refusal of a request should be explained and documented, not least because this is a matter of good practice, but also because this will help with your defence if a claim is brought under the flexible working regulations.

Leeanne Armstrong:

Yes. And this approach will also help you if in addition to or instead of a claim under the flexible working regulations, a claim is brought for indirect sex discrimination. 

It's generally accepted by employment tribunals that a failure to allow flexible working does have an adverse impact on working mums. And this argument often forms the basis of claims for indirect sex discrimination when a flexible working request is refused, with the claimant arguing that, for example, an employer's insistence that work be undertaken full-time and/or in the office is a ‘provision criterion or practice’, which has a substantial adverse impact on women.

Now, this is not to say that employers are completely hamstrung if a flexible working request is made by a female employee and the employer cannot comply. But, even if a flexible working request is refused and indirect sex discrimination is found to have taken place, it is possible that the employer might be able to objectively justify it. Which brings us back to the importance of dealing with requests in a timely fashion, and with a good paper trail recording the objective business reasons for refusing a request.

Jonathan Rennie:

It will be interesting to see what impact, if any, the widespread adoption of homeworking practices by both male and female employees has on the construction of indirect sex discrimination claims. Will, for example, employment tribunals still work on the assumption that a failure to follow flexible working policies has a disproportionate impact on women? 

Another area we'd recommend focusing on is mental health and wellbeing. Employees’ mental health will inevitably have been affected during this pandemic. NHS services have seen a spike in mental health emergencies as a result of the coronavirus, and are preparing for higher demand in the coming months. 
We talked about burnout in an earlier podcast episode, and there is now the reported phenomenon of bore-out, where people stuck working from home are suffering from a lack of social interaction and repetitive work tasks.

Whilst technology is mostly great for formal meetings, it can be clunky. It doesn't work for those spontaneous social interactions that punctuate and even oxygenate the working day, and often spark creativity.

It's clearly important to continue communicating with your colleagues and employees and encourage them to socialise and come together as a team, even if they can't be together in the office. But also remember people can potentially get Zoom fatigue. Offer social events, but don't necessarily make them compulsory.

Leeanne Armstrong:

Another potential problem is that not everyone will have access to the same amount of space that others are lucky to have at home. Some may not have the benefit of a spare room to use as a home office, and instead their living rooms, kitchens, bedrooms are all doubling up as working space. 
This can present challenges, particularly if you're at home with family or housemates. And certainly speaking from experience, trying to host a Zoom meeting whilst simultaneously fielding questions on Key Stage 2 algebra, or building a Lego Duplo castle is not easy. It has been reported that women have been disproportionately affected in this regard, with homeworking mum's doing more child care and chores at home than fathers who have the same working arrangements.

I think another important issue coming out of working from home that we've seen during the pandemic is the monitoring of employees. Monitoring employees who are working remotely and their productivity levels is another issue that employers have been grappling with since the start of the homeworking revolution, that has been sparked by the current crisis. 

Some employers are using new methods to monitor employees working from home, and they can be quite intrusive. Sneak, for example, takes regular photos of employees through their work's laptop web cam, and this can happen as often as one photo every five minutes. It then uploads them to a wall of faces.
InterGuard’s software will alert employers if their employees’ activity is deemed suspicious, and will also monitor emails sent by employees to gauge levels of productivity. It also takes pictures of employees and in this particular software, it can be as often as once every five seconds.

Jonathan Rennie:

That's scary stuff, Leeanne. Aside from the implied legal duty on employers to maintain their employees’ trust and confidence, this type of software will almost certainly affect morale if it's deemed to be too intrusive or not even communicated properly to employees. Employers need to consider the balance between reasonably monitoring their employees, and actually just trusting their employees’ ability to get on with their jobs.

Leeanne Armstrong:

I suppose though, Jonathan, there are some questions to raise here. Is there an argument that employees might have to accept some kind of surveillance, at least until we've established more trust and settled into what remote working en masse might look like in the UK?

Sarah Skeen:

The debate is that there are lots of things that are going to be new and alien for both employers and employees that we're all going to have to work through. Accepting that, and perhaps testing the temperatures as things evolve is probably going to get you a long way. 
Now, although the methods of something like Sneak and InterGuard seem quite extreme, they’re not necessarily illegal. And in determining whether your remote monitoring policy and practices are appropriate, there are four things to consider. 

Firstly, you should act in a proportionate and justified manner. So for example, in respect to the method you used to monitor, there must be no other suitable, less intrusive option. Secondly, you should inform employees of your intention to monitor them. This will also mitigate risk in respect to breaching the implied contractual duty of trust and confidence.

Thirdly, you need to be mindful of the risks around discrimination. Employees could claim they've been disproportionately targeted, whether that be a woman with child caring responsibilities or more junior employees who will generally be of a younger age. It will be important to apply a consistent approach to monitoring, say perhaps in circumstances where there are very specific performance concerns. In the latter case, the employee should be aware of this and understand the reason that they are under increased levels of monitoring. 

Finally, employers need to ensure there are sufficient safeguards in place to prevent abuse or over-monitoring. Clear guidance should be issued to managers on the extent to which they can monitor and how this should be carried out.

Leeanne Armstrong:

And I think, regardless of whether you do decide to monitor staff or how you go about doing it, alongside monitoring for productivity, it is equally important to ensure that staff take regular breaks and know when to switch off. 

Our fourth podcast episode on burnout and stress at work has been our most popular episode so far. And I think that shows just how much this issue has grown and more positively, how many HR teams are taking it seriously and are keen to make sure that they are supporting their employees.

Jonathan Rennie:

Flexible working might help to facilitate work life balance in some ways, but it can also lead to work life blur. I'm sure lots of us are familiar with this, where there's never any clear demarcation between places of demand, i.e. work, and places of relaxation, i.e. sitting on your sofa. 
Remember that the Working Time Directive, which guarantees rest breaks and holidays, was originally brought in as a health and safety measure to protect employees’ wellbeing. Holidays are equally important, even if you can't travel as well as you used to right now. 

You should remind employees about the importance of taking time away from work even if they're not going anywhere, as well as your own health and safety obligations. You can also insist employees use their holidays, which we've seen some companies doing already. But under the Working Time Regulations, you need to give twice as much notice as the length of time you want someone to take off. 

Problems could arise with insisting that employees take time off during the lockdown period, for example, where this is at odds with the ‘rest and relaxation’ purpose of the entitlement to holiday.

Sarah Skeen:

But maybe Jonathan, that depends on how individual employees feel about the people that they are locked down with.

Jonathan Rennie:

Yes, well, I think talking for myself, even people who live on their own and have been falling out with themselves during this crazy time.

Leeanne Armstrong:

This brings us onto another potential flash point for employers using flexible working: health and safety. This is easy to overlook when employees are not physically present in the office, but employers must still provide a safe system of work for their employees, whether the place of work is the conventional office or the employee’s garden shed. 

So whilst it's probably not too bad having employees hunched over laptops for a couple of weeks, that's not going to be acceptable for the prolonged period of homeworking which is currently expected for many staff.

Jonathan Rennie:

Yeah. I mean the really critical thing that we've been advising employers to do is to keep a well-documented risk assessment, should any issues arise further down the line. 

So you should assess the risk, set up a safe system of work and ensure that the system is followed, which might be easier said than done. 
Of course, if there are large numbers of employees working from home, it probably won't be feasible to undertake the same level of risk assessment that you would in the office. Realistically, it will probably be the employees themselves who undertake the risk assessment, but you can encourage people to do this in conversation perhaps with their line manager or someone from HR. 

Now your obligation is only to do what is reasonably practical to ensure the safety of employees. So long as you've done as much as you reasonably can, you will probably have discharged the legal duty.

Leeanne Armstrong:

Yeah. So Jonathan, for example, laptops should be provided where necessary and you should discuss with employees what their homeworking station is like, to ensure it is safe. 

You may need to think about providing standalone keyboards and mice, and ergonomic equipment and monitors to ensure people aren't working hunched over a laptop. If an employee suffers from specific problems, such as back issues, you may wish to provide a suitable chair or backrest if appropriate. 
In our experience, it's the third stage of these health and safety requirements – that implementation stage – where employers most often fall down. You need to make sure that once you've done your risk assessment and set up a safe system of work, that you're checking that the health and safety requirements are being followed. For example, checking employees are actually using any special equipment provided.

Sarah Skeen:

One question we're often asked is how to deal with conflicting requests for flexible working. What should you do if one person's desire for flexible working impacts on another person's job? 

If a request for flexible working falls within the statutory framework that we mentioned earlier, then because you've got conflicting requests, that could fall within one of the statutory reasons to refuse. So for example, that there's an inability to reorganise work among existing staff. 

There are eight statutory reasons that you can use to refuse a request for flexible working. These are: the burden of additional costs; a detrimental effect on ability to meet customer demand; inability to reorganise work among existing staff; inability to recruit additional staff; a detrimental impact on quality; a detrimental impact on performance; insufficiency of work during the periods of the employee proposes to work; or planned structural changes. 

I know I'm speaking for myself and I'm sure Leeanne and Jonathan, we've all got some examples of how requests can fit within those what are very broad eight categories. Leeanne, I think you were going to mention one in particular. 

Leeanne Armstrong:

Yeah. So relying on reasons such as detrimental impact on quality and performance without actually having any basis for such a conclusion, can give rise to problems for employers. 

I mean, certainly in the past, I know I have encouraged clients to use trial periods where they're just not sure if things would work out. Employers can air concerns certainly at the outset, perhaps about how the new working arrangement could impact on quality and outputs. But show a willingness to trial the arrangement for a short period before rejecting the request altogether. 

This also leaves the employer better placed to defend the decision that has been made, by being able to draw on the issues that have come up during the trial period.

Sarah Skeen:

Another potential issue with flexible working is data security – something that many businesses will already have policies on, but perhaps not with the mass rollout of flexible working practices in mind. 

As you're probably aware, hackers and fraudsters operate by “following the money” so to speak, and quickly jumped on the coronavirus as an opportunity to scam unsuspecting individuals and hack into inadequately protected IT systems.

Jonathan Rennie:

Employers will need therefore to ensure that they have sufficient safeguards in place, to protect any personal information that the company holds. This includes printed documents, as well as digital information. The Information Commissioner's Office has published ten tips for working from home securely, which we will link to in the episode notes.

Leeanne Armstrong:

And revisiting another episode topic that's been really popular for us, as we've mentioned earlier, most general obligations of employers towards employees don't stop at the office door. Harassment and discrimination can still be very much live issues, even outside of the office environment. 
As always, employers can be vicariously liable for acts done by their employees in the course of their employment. And that's whether it happens in the office or via remote working platforms. 

So for example, messaging platforms such as Slack and WhatsApp are likely to be increasingly used as an effective means to communicate amongst colleagues and teams, as a result of remote working. And this may invite an increased risk of comments within wider group discussions, which could be inappropriate or offensive to another or others in the group. Prior to lockdown, there were also a number of reported cases that went through the tribunals related to inappropriate comments placed on social media.

Leeanne Armstrong:

And I think in this context, it's good to revisit those cases. And one interesting one that I have picked up was a Northern Ireland industrial tribunal decision in the case of Teggart v TeleTech. 

Mr. Teggart was dismissed by his employer, TeleTech for posting inappropriate and sexually suggestive comments about another colleague on Facebook. The tribunal held that it had been reasonable for the employer to find Mr. Teggart had harassed another employee and summarily dismissed him on that basis. The fact that these comments had been made outside of work and in the employee's own time did not have any bearing on the decision.

Sarah Skeen:

As discussed earlier, the level of employee monitoring should also be consistent. Someone who feels that they're being checked up on more than others may perceive this to be an act of harassment. 

Conversely, an intimidating, hostile, degrading, humiliating or offensive environment, which is the legal test, could be created if a person feels they're being left out of team meetings or being overlooked at work. Feelings of this nature could well be amplified in a remote working situation, where individuals are already struggling with limited face-to-face contact. 

You should ensure that you've got comprehensive policies in place that are designed with the extent of agile working in mind, and that these are well communicated to staff. Refresher training on dignity at work policies, particularly in the context of increased reliance on virtual communications, maybe worth considering. You might also want to review your policies and practices to check they cover virtual communication, as well as conventional workplace based interactions.

Jonathan Rennie:

And another area of equalities law: do be mindful of the impact of flexible working on employees with protected characteristics under the Equality Act 2010, such as disabled employees. 

If you have an employee who isdeaf or has difficulties with hearing, or is visually impaired, then a Zoom meeting will put them at a substantial disadvantage. So therefore seek to adapt the technology accordingly in consultation with affected employees. 

Also, I think it's notable that the impact of the pandemic on social anxiety disorders is also likely to present a challenge as employees are integrated back into the office based working environment. Whilst employees who suffer from social anxiety may have felt relieved by the reduced person-to-person contact during lockdown, the time spent at home and isolated from colleagues could make the return back to the office more difficult.

Longer-term, as employers explore more permanent agile working solutions, hot-desking may become more of the norm. For someone suffering from social anxiety, the idea of not being familiar with surroundings or the people sitting around them could be distressing. It's important that employers are mindful of the effect of changes such as this to mental health disorders, particularly as lockdown eases and many are beginning to reintegrate back into working life. 
So before we go, we've just got time for a couple of listener questions. Firstly, "My employer is demanding that I use certain technology on my personal mobile phone to enable me to attend work video calls. Is this reasonable?"

Leeanne Armstrong:

Thanks Jonathan. Yeah, the notion of ‘bring your own device’ where employees would use their own devices for work in addition to, or instead of company provided ones, is not new. Many employers have taken this approach in the past. And in that situation, it is preferable that you have a formal policy that provides guidelines on their use. 

There are a number of issues for both employer and employee to consider if relying on an employee using a personal device, and the first is cost. If your employer is asking you to utilise your personal mobile device for work, what costs are you being reimbursed for? That could include any software that you've had to put onto your device or any additional billing or data charges that are linked to work-related use. 

The other significant issue relates to the GDPR and potential data privacy issues. Businesses need to ensure that data stored on an employee's personal device is as secure as it would be on their own servers or databases.

Now in response to this particular question, I don't believe an employer can insist on an employee downloading software onto their own personal mobile phone. And it's ultimately their responsibility to ensure that the employee has the necessary devices to join work calls and otherwise be able to carry out their role. 
However, subject to discussing and resolving the issues I've mentioned with your employer, it may not be an unreasonable request, particularly in the current climate where remote working remains a necessity, and employers must ensure that they continue to have the capability to manage their business this way.

Jonathan Rennie:

So here's a question I've been asked a lot, both at work and at home actually. And it's featured in the news quite a bit. "Are you expecting to see an upturn in whistleblowing cases around health and safety at work when there is a return to work?"

Sarah Skeen:

I think the answer to that, Jonathan is yes, there almost inevitably will be. 
Employers, as we've mentioned today, have a statutory duty to ensure the health, safety and welfare of their employees as far as is reasonably practicable. In the context of the pandemic, employers will have been required to risk assess the workplace and implement measures to safeguard their employees. 
Workers and employees who speak up and raise concerns about a failure to provide a safe working environment, may well be protected under the whistleblowing legislation, if they believe they have suffered a detriment and/or been dismissed as a result of raising that disclosure. 

So in order to minimise risk in this area, we'd recommend that employers review their internal whistleblowing procedures and ensure managers are trained to recognise and appropriately handle this kind of complaint.

It's also worth noting in this context that under separate health and safety provisions in the Employment Rights Act, there's also protection against suffering a detriment or being dismissed if an employee leaves or refuses to return to work, because they reasonably believe there is a serious and imminent threat of danger. As to whether this protection applies in the context of COVID, this will inevitably feature in tribunal litigation in due course. And we expect to see cases such as this flowing through the tribunal system over the next few months.

Jonathan Rennie:

Thank you, Leeanne and Sarah. And thanks to all of you for listening. We aim to cover the biggest topics that are affecting HR teams, so please get in touch if there's something you'd like us to look at on the podcast. 

You can email us at emplawpodcast@tltsolicitors.com or Tweet us using #TLTemploymentpodcast and tagging @TLT_Employment. If you're enjoying the podcast, you can rate and review it, which means that more people can find it and take a listen. 
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The information in this podcast is for general guidance only and represents our understanding of the relevant law and practice, at the time of recording. We recommend you seek specific advice for specific cases. Please visit our website for our full terms and conditions.

The information in this podcast is for general guidance only and represents our understanding of the relevant law and practice at the time of recording. We recommend you seek specific advice for specific cases. Please visit our website for our full terms and conditions.

 

 

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