5 years on: the pandemic legacy on working practices

Over five years since the first Covid lockdown, James Walters and Amy Russell-Hughes reflect on the pandemic’s impact on workplace practices. They discuss how it influenced sickness management and employee wellbeing, as well as the ongoing 'return to office' debate. Tune in for more insights on how employers are navigating these post-pandemic changes.

Transcript

James Walters: Hello everyone, thanks for joining us today and welcome to the latest podcast from the Employment team at Lewis Silkin. I'm James and I'm here with my colleague Amy.

Amy Russell-Hughes: Thanks James, it's great to be here and we've got such an interesting topic to discuss today which is all about 5 years on from lockdown, reflecting on how working practices have reshaped the world of work, what impact that may have had on the Employment Rights Bill and some of the policy changes that we've seen the government discuss. I can't quite believe that the start of the pandemic was over 5 years ago.

James Walters: Yeah, it's incredible how quickly time goes by and also how quickly some things can change. And as you said Amy, that's what we're going to discuss today, we've got three focus areas: first, we're going to consider whether the pandemic has changed approaches to sickness and how it's managed at work. Then we're going to look at how the pandemic has generated a greater focus on wellbeing in the workplace. Finally, the undisputed biggest pandemic-driven change of all, where we work, how we work and the return to office debate.

Attitudes to sickness & SSP reform

Amy Russell-Hughes: Absolutely. So to start us off, one of the things that was talked about a lot at the time was whether attitudes to sickness were going to change in the longer term.

James Walters: Exactly, would it ever be acceptable to come into work coughing and sneezing again? But also, I suppose, really tricky questions like do employers have an extended duty of care to vulnerable relatives who an employee lives with? The pandemic really shone a light on the concept of vulnerability, and particularly how there's no one-size-fits-all approach to how people are affected by illness. I suppose it also reinforced concepts like good hygiene and isolating when you're contagious.

Amy Russell-Hughes: Absolutely, James. Those concepts were crucial during the pandemic, but where do we stand now? I'm not sure that ideas have had the longevity or the wider application that we thought they might. Of course, during the pandemic, we saw employers making drastic changes to sickness absence policies. For example, they excluded any absence for covid related reasons from sickness records which meant that it wasn't taken into account for things like trigger warnings and of course policies and workplace comms flagged that you shouldn't be attending work when you were unwell. But my experience has been that this hasn't brought about a new generation of sickness absence policies, or a sea change in how employers approach sickness - and specifically keeping it out of the workplace - more generally.

James Walters: Yeah, I'd agree with that, Amy. It's no surprise employers didn't retain those sorts of attendance policies because they were so specific to the extreme situation that we were all juggling with at the time. But I think the appetite for keeping things that might still be relevant post pandemic - like staying away if you think you might be infectious - has been dealt with by the huge change in where people work.

Another useful knock-on effect from the pandemic is that managers at HR teams have got used to carrying out risk assessments. We've obviously had risk assessments for years as a central part of handling health and safety obligations at work but I think the pandemic made that kind of assessment more ‘mainstream’. It put risk assessments on people's radar and got them comfortable with how they work. So now we're seeing risk assessments used more commonly and in new areas like managing risk for the duty to prevent sexual harassment as a useful way to identify, evaluate and then mitigate risk.

Actually just coming back to that hybrid working point, while working at home might prevent people from spreading germs at the office, it's also a disincentive on an individual level to take sick leave when it's actually needed. So, in industries where hybrid working is actually possible, I've seen a push in workplace communications to emphasise the importance of actually taking sick leave, rather than trying to work from home while you're unwell which is always a recipe for disaster.

Amy Russell-Hughes: Yeah, that's definitely true James - it's certainly easier to ‘soldier on’ from home. That said, there is another side to this story as the statistics actually show a huge increase in the number of days lost to sickness. Since 2020, the average person takes almost eight days off sick a year and almost 3 million are off work due to chronic illness. Now I think we could probably do a whole podcast on this trend as there are so many different factors at play here, but it just underlines how managing long-term sickness absence is an ongoing challenge for employers.

And something else that the pandemic shone a light on was sick pay. There was a lot of discussion during those pandemic years about the rate of SSP - statutory sick pay - and the fact that it only became payable from day four of sickness. Of course, there were some changes for that specific period, with it being extended to those who weren't actually sick but were self-isolating and that waiting period of four days was temporarily removed. With the change of government last year, everyone has been wondering if we were going to see any increase in SSP, perhaps increasing it to the same rate as SMP - statutory maternity pay - but I don't think that's looking as likely anymore, given the backlash over the other measures that the government have brought in such as increasing employer National Insurance Contributions.

James Walters: Yeah, I agree an increase doesn't seem likely anytime soon, but you've probably all seen that there's been some change to SSP via the Employment Rights Bill where we've seen the removal of that four-day waiting period you mentioned, Amy (that was just a temporary change during the pandemic but it'll become permanent at some point this year). Also, for low earners, so that's someone who earns below the £123 lower earnings limit, they'll be able to receive sick pay at 80% of their average weekly earnings.

Amy Russell-Hughes: Yes, some welcome change there for those who are dependent on SSP but a limited impact for employers who already offer enhanced sick pay as a benefit. And that brings us nicely onto our second topic, James, wellbeing post pandemic and what kind of benefits some employers have started offering employees to try and support their wellbeing.

Wellbeing

James Walters: Yes, absolutely. This has been a really big area of focus for employers. First off, because the pandemic was an incredibly difficult time for many people – we should never forget that in these kinds of conversations for employees who were able to work from home and even to an extent those who weren't people's home lives and the difficulties that people juggled like being a carer for a relative or having young children or unfortunately in some cases experiencing domestic violence as well - those things became a lot more apparent to employers where they hadn't possibly been before. A lot of employers have introduced domestic violence policies recently and there's a real focus now on what employers can do to help people in all stages of their lives, from a well-being perspective, rather than perhaps just when they become a new parent.

The second impact area was the ‘Great Resignation’ where huge numbers of people decided that's it, I've had enough and they left their jobs to pursue other opportunities, businesses then had to scrabble around and work hard to attract and retain talent.

Amy Russell-Hughes: And the third area was the big focus on where people work. One of the big difficulties of hybrid working is that tension in establishing boundaries between home and work. You only need to look at the Acas guide on mental and physical health when working from home which specifically notes that staff can find it harder to switch off from work and work longer hours when they're homeworking, and I think a lot of us experienced that firsthand during the pandemic.

James Walters: Yeah, that's absolutely right, Amy - and that's been a big factor in the government suggesting it might introduce a so-called “right to switch off” which I'm sure most people have heard about by now. In principle that would mean an employer could not force its staff to do things like reply to emails outside of working hours. Although this was widely anticipated to feature in the Employment Rights Bill, it now seems that the government isn't going to take this forward anymore. That the right to switch off understandably captured the imagination of a lot of journalists and it was very heavily trailed in the media and we've had lots of questions on how it was going to work and what employers could do to get ready for it.

Amy Russell-Hughes: Yeah, and even though the government have decided not to take that idea forward, it actually focuses some employers' minds on this issue, highlighting the importance of that for employee welfare. In terms of practical steps, I've seen employers roll out internal policies about best practice, and the importance of recognising that a lot of people work different hours these days to the typical 9-5. So, adding a reminder of that to email footers and saying no response is expected outside of your working hours, for example. We've also seen some employers carrying out culture audits as in some cases, where staff are calling for a right to disconnect, that can be a cultural issue, reflecting deeper problems with the organisation's working environment. Perhaps unrealistic management expectations or implicit pressure to be constantly available - things like that. We actually rolled out our culture audit service last year and it's proven really popular with clients to get to the bottom of some of these issues.

James Walters: And speaking of benefits, we have flexible working. I've lost count of how many surveys I've seen with really high percentages showing this is more important to people than salary or other benefits and it appeals to all demographics - for example, flexible working is seen as a key component of an over 50’s friendly workplace

Return to office

Amy Russell-Hughes: And of course, you can't talk about flexible working without discussing the return to the office which brings us onto our final topic for the day, James: the big return to the office. We've seen lots of headlines this year about a change in policy and more employers asking their staff to be in the office either in a hybrid manner or some even five days a week. You only have to look at the US and the demand for federal employees to return to office working five days a week after Trump won the presidency.

James Walters: Yes and of course the US approach does have a knock-on effect here, particularly for US headquartered companies. So, what have we seen so far in the UK? It really stands out that requiring more day’s office attendance results in more formal requests to work from home. Obviously this isn't a surprise, but it leads to more manager time being tied up in handling the influx of remote working requests. And that part of flexible working requests can force employers to grapple with some really difficult issues. We're seeing mental health and neurodivergence frequently cited as the reason for remote working requests. This is where good; practical and expert occupational health advice becomes critical. It can be difficult for employers to know how to manage a flexible working request where you have a 2-month deadline to make a decision, but where it also has to be considered in the context of the duty to make reasonable adjustments. Also getting the good, solid, practical occupational health advice you need often takes much longer than two months. But deadlines aside, it's important to remember that the employer's duty to make reasonable adjustments isn't dependent on a request: it's triggered when the employer knew or reasonably ought to have known that the employee has a disability and is disadvantaged in some way.

Amy Russell-Hughes: Yeah, absolutely. So sticking with flexible working, I think what's really important with any request is that the employer is able to evidence that it has properly thought through the request and can clearly identify why it won't work. Now that sounds fairly common sense and basic, but it really, really is the key. We've all been waiting and watching for the post pandemic cases to start coming through about how employers have been handling flexible working requests, haven't we, and whilst there's no appeal level case law yet - there have been a few interesting Tribunal decisions.

James Walters: Yeah, I remember there was general excitement among employment lawyers (who were probably the only people to get really excited about this sort of thing) about the first case last year, which was Wilson v FCA. What was striking about that was the sense of relief I felt from employers when we were discussing it. The Employment Tribunal unanimously agreed in this case that the FCA's concerns about the negative impact of remote working for a senior manager were well founded. And it was clear that the employment tribunal really did understand that whilst technology is great, obviously, it's less so when it comes to rapid discussions and the all-important nonverbal communication that's needed.

Amy Russell-Hughes: Yeah, and we've had a few more since that one. One where the tribunal found employer concerns about workforce cohesion and the training and retention of new starters were all valid and another one where the tribunal agreed that despite three days of home-working going well during the pandemic, it was valid for the line manager to believe that being in the office more frequently would improve response times and team collaboration. I'll link both of those decisions in the transcript in case anyone is interested in having a further look at those, but I do think we have some early signals from the tribunal that employers can legitimately refuse requests for remote or hybrid working. But as I said, with a clear rationale and demonstrable real proper consideration.

James Walters:  And of course, the Acas Code of Practice which was updated last year clearly states that a formal consultation meeting is needed and that alternative options should be explored if the original request can't be agreed. I often see people argue that home working worked really well during the pandemic so to dismiss the request is now unreasonable - you know that kind of argument, I've be doing it for so long, what's changed now? But we have moved on and home-working when the rest of your team regularly attends the office - so you're the only one at home - can impact the team's effectiveness and it's interesting to see that the Employment Tribunal is starting to recognise that as well.

Amy Russell-Hughes: And looking to the future, of course the Employment Rights Bill is set to make more changes to the flexible working regime. In quick summary, flexible working requests will only be able to be refused if it's reasonable to refuse it and the grounds for refusal must be stated with an explanation as to why it's reasonable to refuse the request for that reason.

James Walters: So not really a radical change, is it, and I'd go as far as saying that actually those changes don't really match up to the government's promise of making flexible working the default. Although introducing that element of reasonableness of any refusal will perhaps make it harder for employers to refuse requests outright. My advice to employers that are facing these tricky return to office conversations at the moment is to have them this year and to deal with those flexible working requests under the current regime rather than waiting until these changes come to force. On that note, we're still not quite sure on timing, but it's unlikely to be before April 2026. Also, that's not going to make the issue go away as employees are able to put in two flexible working requests every year.

Amy Russell-Hughes: And taking us back to return to the office, managing the flexible working requests is just one of the issues that this is throwing up. The other one that I wanted to discuss today are the differing approaches as to how employers are going about getting people back into the office. On the one hand, you have the carrots, I think we all remember the free lunch, the free drinks and the office perks to entice employees back into the office, and then the more long term, juicier “carrot” is starting to trickle through now -so that's things like linking office attendance to bonus awards, pay rises, appraisal ratings etc. That's not always an option for some employers though, if you're penalising your top performers and risking losing your best people.

James Walters: That's right. And the alternative ‘stick’ approach is likely to be a formal process that most likely involves taking steps to enforce existing contractual terms on work location. This is because most employees are continuing to work remotely on an informal basis, as a carryover from the temporary arrangements that were put in place during the pandemic. And in most situations, these arrangements have not been formalised in employment contracts. In those cases, employers can generally enforce contractual terms about office-based work as long as the appropriate process is followed. But that's time consuming, potentially damaging to the working relationship, and is also likely to result in a flexible working request.

Also, in some cases, the terms of the employment contract may be unclear or have been altered over time since the lifting of pandemic restrictions. That's an altogether trickier process that I'm not going to try and cover now. Delving into questions of contractual variation, customer and practice arguments and that sort of thing is pretty unattractive, really. I always try first to win over hearts and minds: basically explain to people why office attendance is necessary and can benefit everyone and only move to relying on contract terms if absolutely necessary.

Amy Russell-Hughes: Yeah, another consideration for employers who are trying to enforce a particular level of attendance is the evidence that they're using to back this up. So, if employers are wanting to use office attendance data, one of the issues that arises is where that data is coming from and how accurate it is. Firstly, from a data privacy perspective, you really need to be transparent about that as well as proportionate by using the least intrusive data. Secondly, it's about accuracy, isn't it? VPN records are tricky with people connecting on multiple devices which can make them show up as multiple people or if people haven't connected at all despite being in the office.

James Walters: Yeah, there's monitoring office attendance data and then there's monitoring software generally, isn't there. Did you see that case in the news about a police officer who was fired for gross misconduct after she weighed down the keys on her computer keyboard more than 21 million times to make it look like she was working when she wasn't?

Amy Russell-Hughes: Yeah, extreme measures taken there. But even if it's coming into the office, we hear now the term ‘coffee badging’ - I think that's the new version of leaving your jacket on the back of the chair. So apparently employees attend the office just long enough to get noticed, have a nice coffee, and then they hot foot it out the door. So, the reality will be that employers might be trying to rely on this sort of data to take disciplinary action and if so, they're going to need to really interrogate exactly what it's telling them to ensure that they act fairly.

James Walters: So many different things to think about, aren’t there? I think the cultural change triggered by the pandemic has been so fast that the law and employer’s attitudes are really just trying to catch up. Certainly, for things like employer’s attitudes to home and hybrid working, it feels like we've jumped forward 20 years in just five. It's going to be really interesting to see where we are in another five years’ time.

Amy Russell-Hughes: Definitely! See you here for another podcast then! But for now, that's all we've got time for. Thank you so much for listening and hopefully we'll see some of you at our flagship Managing an International Workforce conference and catch up with you in person - that's next month - looking forward to seeing some of you there. Thank you.