For most of us, 2020 is a year that we will be glad to put behind us. It has been a turbulent one to say the least, filled with unprecedented challenges of varying types and degrees for most.

For many employers, it saw their businesses close with little or no notice and difficult decisions about changing terms (for example, reducing hours and pay) or making redundancies. On the flip side of the coin, many employers were suddenly faced with an entire workforce being hurtled into homeworking.

Employers were required to switch their focus, refresh their business models, and move away from the traditional norms of the 9 to 5 office environment and adapt quickly to the new ways of working.

In this year-end round up, we are going to look back on some of those key policy and procedure considerations for employers living in a Covid-19 world. As we enter 2021 in yet another state of lockdown, there is no better time for employers to take action to refresh policies to ensure they are fit for purpose. Going into the New Year, we are arguably now past the point where the unanticipated nature of Covid-19 and a lack of time or resources to prepare justifies not adapting in key areas.

Refreshing and revisiting policies to account for the changing way of working not only helps you mitigate exposure to potential legal claims, but also helps guide employees and line managers on what they should be doing in what can be an uncertain and confusing time.

Health and safety

Health and safety remain paramount, and this can be easy to overlook when employees are not physically present in the office. Employers must still provide a safe system of work for employees, whether the place of work is a conventional office or the employee’s home. Our tops three tips are:

1. In broad terms, the regulations generally dictate that a risk assessment should be carried out to assess potential hazards and/or required equipment. Employers should therefore be able to evidence having carried out a risk assessment. This does not need to be in person at each and every employee’s home, so consider sending out a form for employees to compete, allowing them to flag any additional support or office equipment they may need.
   
   
2. As an employer, you have a statutory duty to ensure the health, safety, and welfare of your employees wherever possible and as far as reasonably possible. At the very least, you should ensure you are talking to employees about homeworking issues, recording any issues and concerns, and doing what you practically can to create a safe working environment.  
   
   
3. Be aware of your continuing positive duty to make reasonable adjustments in respect of disabled employees. This could mean ensuring they have appropriate computer and phone equipment, or an adapted desk and chair at home to remove any provision, criterion or practice that may place disabled employees at a disadvantage compared with others.

Home and remote working 

Whether through government direction with restrictions or stay at home guidance, or as a broader rethinking of your business model, homeworking is set to remain a feature of working life in 2021.

You may have already given some thought to how you intend to operate your business on the other side of the pandemic, possibly through a blended or hybrid approach to home and office working.

Many employers may opt to introduce new agile working arrangements that provide employees with more freedom to work from home during part of the working week – without any requirement to go through a formal flexible working request or a permanent change to contractual terms. The introduction of agile working practices can provide a great employee attraction and retention tool. In addition, the employer can facilitate more employees working from home at a given time and it could avoid future conflicts that may arise from multiple formal flexible working requests.

If you intend to move towards a more agile working model, it’s important to have a policy in place that sets out the terms of the arrangements, including:

1. Any day(s) in the working week when all employees must attend the office.
   
   
2. The maximum number of employees who can work from home at any given time. If Friday for example is a popular day for homeworking but a proportion of the workforce is required to be in the office at any given time, employees may need to rotate to ensure fairness.
   
   
3. Limitations on the number of days an employee can work from home each working week.
   
   
4. Core working hours during which all employees, whether they are working from home or in the office, must be online and working.

Agile working arrangements will not work for every employee and certainly, there is no one size fits all approach to it. It may be that it is suitable for certain teams in your business but not others. Before introducing a new policy, you may therefore want to trial the proposal with a test group in your organisation and gauge feedback from employees on what elements worked and which didn’t. This will be useful to shaping the terms of any agile working policy you may roll out in the future.

Monitoring performance

It is advisable to revisit how you manage performance during prolonged periods of homeworking.

Line managers may need to be retrained or upskilled in monitoring performance remotely and/or any new technology or monitoring methods. A new year can present a good opportunity to refresh practices. In reviewing your existing policies, it is wise to consider:

1. Whether existing ways of monitoring performance are fit for purpose in light of the pandemic.
   
   
2. Whether regular supervision and/or more formal appraisals can and have been able to take place remotely. If systems of support and performance review have diminished in 2020, now is a good time to review and reflect on how this picture can be improved. This might include moving appraisal processes entirely online and/or stipulating that regular catch ups take place between employees and their line managers, perhaps on a weekly basis on video.
   
   
3. The existing procedure for monitoring underperformance. If action plans are put in place at an early stage, how is the plan put together, and more importantly, how is it monitored during the relevant period and is this effective?
   
   
4. It is also important to remember employee entitlements to be accompanied to meetings. This may require ensuring that both the employee and their chosen representative have access to the video platform being used to facilitate meetings. It is also important to remember the other fundamental aspects of a performance review process, including provision of written outcomes with clear timescales for improvement, and the right to appeal against any given sanction, up to and including dismissal.

IT and acceptable use policy

If remote working is likely to be a longer-term feature of your workplace, you may already have made or intend to make new investments in IT. Beyond day-to-day communication and task collaboration, you may want to think about how you will deliver training, how managers can check in with teams and how people can come together socially online. Of key consideration:

1. Update your policies to cover terms and acceptable use of any new software or video or messaging services such as Zoom, Microsoft Teams and WhatsApp. This will be of particular importance where the lines between home and personal use of such services are more blurred.
   
   
2. Consider linking the use of new video and messaging platforms back to your dignity at work/bullying and harassment policy and remind employees of expected conduct online. Employees should be aware of and understand the potential consequences of any misuse.
   
   
3. If you are monitoring employee activity or implementing new software or methods to monitor productivity, you should update your policies to make the extent of your monitoring clear. It is important that monitoring is strictly limited, and employers are encouraged to follow and adhere to the Information Commissioner’s Office guidance on this.

Flexible working

As we progress through 2021 and employers plan for some return to pre-pandemic workplace presence, some employees may seek to benefit from the informal working from home arrangements on a formal and permanent basis, via a flexible working request. It is possible that employers could face an influx of flexible working requests for permanent homeworking in 2021.

In anticipation of this, we would recommend the following:

1. Revisit your approach to handling flexible working requests. Even if you are happy with your policy, it is still worth considering how you will manage requests, including facilitating meetings remotely if needed.
   
   
2. Train line managers to handle those requests in accordance with legal requirements. As we have emphasised in previous features, there is a statutory process in Northern Ireland for responding to flexible working requests with strict timescales.
   
   
3. A trial period can be a useful tool for employers who simply cannot be sure if the requested working pattern or arrangement will meet business and/or operational needs. However, many employees will consider 2020 to have been an effective trial period. Therefore, while every request should be considered on its own merits, employers should be mindful that evidence of an ability to effectively work from home during the pandemic may cut across some of their grounds for refusal (with reference to the eight prescribed reasons for turning down a request).

Other considerations

Whistleblowing

There will be further changes to working practices and an increased focus on health and safety at work as people return to physical workplaces in 2021. As a result, there may be an increase in reported breaches of health and safety with regard to Covid-19 workplace guidelines.

Even if you feel that a dedicated whistleblowing policy has not been used or needed very much in your organisation, whistleblowing complaints often require a different approach to that of a grievance. This includes who the complaint is passed to, the timings of any investigative process and the extent of any updates the reporting employee is likely to receive.

As a minimum, you should retrain line managers on how to spot a potential whistleblowing complaint and emphasise the need to escalate it quickly through the correct confidential channels.

Data protection

You have hopefully already revisited your data protection policies and procedures to ensure compliance with the GDPR during lockdown and/or periods of prolonged working from home.

If, however, you are considering remote working on a longer-term basis, you may wish to assess whether you need more permanent and robust arrangements to protect data in employees’ homes.

Depending on the nature of your organisation, this may also need to align with your clients’ requirements of how you handle the personal data they have entrusted you with.

Summary

Major changes to working practices ordinarily require a significant period of planning and preparation. However, as a result of the pandemic, many employers have had to act quickly and without warning. As a result, many may not have had the time or resource to review their workplace policies.

As we look ahead to 2021 (and the reality of continued restrictions), this is an ideal time to document the actions you have taken to date and consider further actions for the year ahead. Look out for our focused article on hybrid and blended working in the New Year.