How Has the Pandemic Changed the City Workplace? Top 10 Legal Issues in the Post-Pandemic Workplace

The last two years have accelerated a number of trends which had already started to gain traction.  The most obvious one is the move to remote working.

When forced to confront how to remodel their businesses to keep going during the periods of national lockdown, many office-based jobs were unexpectedly found to be perfectly suitable for remote working.

• How many flexible working requests have been turned down in the past on the basis that the role cannot be completed remotely?
• How many of those did not really explore the technical options to facilitate a remote employee?
• How many, if made now, would be granted in a heartbeat.

In September 2021 ,the Government launched a consultation on reforming the flexible work provisions, that consultation concluded in December 2021 but in the Queen’s speech delivered last week the Employment Bill (of which reforms to flexible working is one part) was notable by its absence.

Not waiting for the legislature, a number of firms are now experimenting with how to offer flexible working as standard. Stephenson Harwood made headlines recently for offering a permanent work from home option to its lawyers.  Those who choose to be based from home will receive a pay cut to reflect the reduced commute time and the flexibility afforded them around where they live.  They will only be expected to attend the office one day in a month, for which expenses will be available.  For those not wanting such a shift, the firm will require 60% attendance in the office, itself a significant move away from the pre-pandemic default for most city firms of full-time office based work.

Looking to benefit from the increase in hybrid and flexible working, Tesco have announced a trial in their New Malden store of flexible office space in store.  This addresses two side-effects of the pandemic (i) a significant shift to online shopping meaning supermarkets are looking for new ways to make money from the retail property on their books, and (ii) the general trend towards flexible or hybrid working which has led to an increase in demand for flexible office space outside of the traditional city centres.

A survey from the Chartered Institute of Management found that 80% of firms have now adopted hybrid-working with those institutions who push for a full time return to the office often facing a backlash, as Rees-Mogg has discovered as he seeks to draw civil servants back to their desks.

The changes brought by the pandemic go beyond merely flexible working or home working.  Employees and workers in their hundreds of thousands have had a taste of a different work life balance, they have weathered an unprecedented mental storm and, having stepped off the treadmill, they are not being lured back without concessions which enable them to protect something of the balance and which prioritise their mental health. As a result, we are seeing changes to attitudes in the city, with Goldman Sachs recently announcing unlimited holiday allowances for senior executives. They have also announced a requirement that workers take at least three week’s annual leave per year.  The unlimited holiday is also on offer at LinkedIn, Bumble and Netflix and it reflects the growing creativity of employers to attract and retain top talent.

You might be wondering what all of this means for employment lawyers.  Here are a few topics where employers are going to need advice because of these sorts of changes. The list is in fact endless, but I offer you a top 10:

1. Managing performance in a remote workforce, where use of technology is made to manage productivity there are issues of privacy and consent, where technology is not used, practical issues around evidencing performance concerns can arise.
2. Potential direct or indirect sex discrimination complaints if it emerges that the majority of remote or largely remote workers are parents with childcare responsibilities and differences in treatment emerge between the in-office and at home cohorts.
3. Potential direct or indirect age discrimination complaints where restrictions are applied to prevent junior workers from working from home or where minimum length of service is required before flexible working is available.
4. Health and Safety challenges for employers in assessing remote workplaces particularly where employees elect to work in a number of locations at will. How far will the employer’s obligations be taken?
5. Jurisdictional issues and tax issues where employees work internationally (permanently or at will) but are employed by a UK employer.
6. Challenges in managing a workplace culture with a dispersed workplace, avoiding a ‘them and us’ culture and effectively tackling inappropriate workplace conduct, all these issues are more complex when some or all of the workplace are working remotely.
7. Data protection is a significant topic with employees working remotely about which much has been written.
8. Closely linked to data protection issues are issues around the misuse of confidential information, arguably something which is much easier to do when logging in from your home office away from watchful eyes.
9. Practical challenges for training and equipping new recruits when either they or their trainers operate remotely. This could create real issues over staff retention and involve considerable cost to employers.
10. Nurturing loyalty and a sense of belonging. On the one hand some of these new approaches are designed to engender loyalty on the other hand less contact with colleagues makes it easier for an employee to move to another employer, they won’t even have to clear their desk.

I do not suggest that these issues are a reason to turn back the clock and return to the mindless assumption of office-based working, but I do suggest that employers who are exploring this new post-pandemic workplace seek legal advice to pre-empt issues so far as possible, to update and adapt policy and processes, and to ensure that their contracts (both new and existing) reflect the new post-pandemic model.

Commentary by Lydia Banerjee