Employment Law Discussion around Mandatory Vaccinations, Hybrid Working and Long Covid

Posted in : 'Any Questions' Webinar Recordings on 6 May 2021
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered: COVID-19 Vaccination; Long-COVID; Hrbrid Working

In this webinar recording, Scott Alexander, Head of Learning and Development at Legal Island and Seamus McGranaghan, Partner at O'Reilly Stewart Solicitors, discuss:

  • The ‘no-jab-no-job’ policy which appears to be gaining momentum
  • The impact of long-covid for employers
  • What employers should be doing to prepare for hybrid working now

The Recording

Transcript

Scott: Good morning, everybody. Welcome to the latest Employment Law at 11 in association with O'Reilly Stewart. We've got Seamus coming up in a second. My name is Scott Alexander. I'm from Legal-Island, and in the background working all the technology is Rolanda Markey.

You can see today is a COVID-related special again with a few things in there such as varying contracts and fire-and-rehire type policies coming later, which we think anyway are somewhat related to the fact that work is changing as a result of home working and COVID and lockdowns and not-so-lockdowns and all that kind of thing today.

It's the usual scenario. We've had some questions in advance. We will be getting to some of those. You've got the question box on the right-hand side of your screen. Drop them in there. I'll ask them anonymously as we go through, having dealt with one or two things.

Our next event, the Workplace Wellbeing, Mental Health, & Resilience event, is happening on the 20th. I've seen the presentations. They are incredible, I have to say. There's an awful lot in there that is different, challenging, and really entertaining, actually.

So if you want to join us there, the early bird offer is still there for people on this poll. We'll send you something later. If you want to just drop "yes" into the question box to make sure that it's working, then we'll get someone from the events team to get in touch with you and make sure that you're given priority and you can join us a week on Thursday, I think it is. That will be very good.

That's the Workplace Wellbeing event. It's an all-Ireland event. If any of you have been to the Annual Review of Employment Law in Northern Ireland, you'll have seen Mark McAllister open and close our Annual Review events. In this Workplace Wellbeing, we have Mark's equivalent, who is Jennifer Cashman from RDJ Solicitors in Cork, and she is going to be speaking at that one there as well.

Now, talking of Annual Reviews, those are the dates. I have drafted the programmes, actually. I haven't released it yet, but we've drafted the programmes for the Annual Reviews, and we're actually currently looking at adding a third day. So it won't be coming straight after the 10th and 11th of November, but we're looking at a third day, an international day, at the moment. More of that to come, but save the date and get in touch. We'll make sure that you get the best special offer that we can do.

That's the Annual Review of Employment Law coming up on the 10th and 11th of November for Northern Ireland. It's different dates if you're from the south. We'll be in touch with those as well. Again, the programmes have been drafted, and there will be some polls actually coming out.

Poll Questions

Question: do you feel it is appropriate for an employer to require all staff to have a COVID-19 vaccine? Answer: Yes = 23%. No = 77%

Question: Have any employees in your organisation reported symptoms associated with long covid? Answer: Yes = 38%. No = 62%.

Question: For employees for whom it is an option, has your organisation consulted on permanent hybrid working? Answer: 46% = no but we have plans to consult. 42% = yes consultation has commenced. 12% = no it's not feasible.

Mandatory Vaccination

Scott: Okay. Well, we'll discuss those. Let's get to our first question of the day that came in. I'm going to have to pull this up on my screen, not your screen.

Can we mandate that employees get the vaccination?

"We are currently risk assessing for a safe return to work to meet the needs of vulnerable clients, many of whom who are awaiting a return to face-to-face service provision. Whilst our frontline workers provide a direct service to clients, this would not be possible without the support of the various departments, including management and HR, etc. We currently have a workforce where 1 in 10 of those employees have chosen not to be vaccinated. Can you advise on the latest guidance regarding staff being vaccinated?"

Seamus: That is interesting in the sense that we have an organisation here that is saying that they have spoken and had discussion with their staff and that they're aware that around 1 in 10 have decided not to take the vaccine.

I know that the vaccine programme has been excellent in Northern Ireland. We've really benefitted from the hard work that has been put into it. There are people that simply haven't got their call yet to get the vaccine, and we know that it's been done on age groups and priority and respective vulnerability and things like that. So you need to be careful, first of all, that you're not putting someone into the point of they're refusing to get the vaccine whenever maybe they just haven't actually been called to get their vaccine yet and they may be keen to get it.

But I do think as a first port of call it is helpful for employers to try to ascertain and get information from their employees in relation to what their stance is related to the vaccine.

Some may feel that that's a step too far in relation to invasion of a person's privacy or their home life or something along those lines, but my view on it is that employers should be asking the question. If there's a refusal to give an answer or someone says that they're not comfortable with it, that can be teased out at a later date, but I think first and foremost you need to be informed.

Where we get really down to this issue is with an organisation that has a lot of face-to-face contact that needs to happen and their problem is that they have 1 in 10 people that they would view as at-risk . . . And at-risk isn't just necessarily about the person putting themselves at risk, but it's about that person maybe not having the vaccine.

We know that even with the vaccine you can still catch it and you can still transmit COVID, but it's about risk assessing and looking at the health and safety of not just the employee but also other employees within the organisation, and then maybe your service users or clients or customers, whatever industry that you're in, in relation to protecting those.

To run down through it quickly, I thought that it might be helpful . . . I don't want to focus too much on the easy parts of the question because I think we're all fairly clear about what the situation is. But it might be useful if we have a discussion and perhaps even, Scott, a bit of a debate in and around what employers should and should not be doing in relation to those employees that don't want to take the vaccine.

Scott: Just to interrupt there, Seamus, there are two aspects, I suppose. There are the existing employees and what you do with those where, potentially, you may be looking at dismissal as an ultimate option, if you like. Then you've got this thing here, which is "no jab, no job" for new applicants. They're slightly different. Well, not slightly. They're quite different, I suppose, in the responses that those individuals could make if you're not given a job because you refuse to get a vaccine or if you're dismissed because you refuse to get a vaccine.

So there are a number of things that employers could do before you get to that stage, and I think that's what you're looking to discuss at the moment. Hopefully, the audience will have a few questions about that as well.

Maybe you can give us a bit of the background to where it lies, because when this question first arose, it was about whether employers can force employees. Can they vaccinate them? The fact is employers aren't vaccinating anyone. It's the Health Service, clearly, that's doing all of that. But can you take action if somebody refuses?

Let's deal with the background and then look at employees particularly. I think that would be useful. In the case of this employer that's come in here, there's 1 in 6 or 1 in 10 refusing to get vaccinated. What does an employer do there, depending on what they do?

We've just had a question in there about people who refuse to wear masks. We've seen a case in the last few weeks on that kind of line as well about an employee who refused to wear a mask, and there was pressure to dismiss from a supplier. "We don't want the person . . ."

So maybe give us a bit of the background, and then we'll have a look at the different options.

Seamus: Certainly, the position hasn't changed. We do hear pieces in the media from certain ministers, mainly English ministers, about vaccinations and about making them compulsory.

Ultimately, the Public Health Act of 1984 expressly provides that individuals should not be compelled to undergo mandatory medical treatments, which include vaccinations. So there isn't a situation where you can make the requirement to have a vaccine or to say that it's mandatory in respect of requiring your existing employees to have the vaccine. I don't think it's a situation that you can line your employees up and have someone come down and jab them against their will. That's just not a possibility.

Certainly, what you can do is encourage. You can inform. You can educate. You can facilitate, whether that is allowing employees time off or being flexible in relation to approaches.

Often, you get fairly short notice, specifically if you're getting jabbed at the GP. You can get the call the day before to say, "Can you come tomorrow?" I think it's about employers where they are looking at that flexibility and working with their employees in relation to that.

Mandatory vaccines are not something that in law is realistic.

Employees, then, that object to the vaccine, the types of issues that I am coming across are where the employee says there are medical reasons or there are certain allergies where they've been advised not to take the vaccine due to its ingredients. I mentioned earlier on about pregnant women or young women who are intending to become pregnant avoiding the vaccine.

The philosophical or religious beliefs . . . I don't think that either of us, Scott, are particularly convinced of the philosophical side of things, but the religious belief certainly is a possibility with the likes of certain faiths who have beliefs about vaccines or the contents of vaccines when it comes to animal products or gelatine or if the vaccine underwent animal testing. Those sorts of issues arise as well.

Then there is the general anti-vax belief. Some employees are just opposed to vaccinations and argue that they hold a valid philosophical belief. It's this idea that there is debate around that and whether employers need to be careful, whether they need to give proper consideration to employees with those viewpoints, or whether they take a view of, "Well, they read something on the internet or watched something on the TV last night and have now decided that they have a philosophical belief".

So there are all these sorts of issues, and they're the types of things I think looking forward . . . certainly with mass uptake at the minute. But whenever the vaccination process starts to slow, those will be the aspects I think that employers will be told by employees.

As I said, I don't think that there can be a situation at all where an employer can force an employee to take a vaccine. Really, then we're getting into this aspect of, "What are the alternatives for the employer and the employee if the employee is not going to take the vaccine?"

Bringing it back to the query or the question, you have somebody here that is dealing with possibly vulnerable people who certainly need to engage on a face-to-face basis, and there are genuine concerns arising for someone that is refusing to take a vaccine. One in 10 in the organisation are refusing it. Does the employer then need to look at a point of saying, "Well, look, if you're not going to take the vaccine, there are certain aspects of the role that you're not going to be able to carry out or perform until either we're told it is no longer a concern, or alternatively, we can facilitate it in some other way"? Whether that's use of PPE in the meantime.

It could be, for instance, that if you have someone that 50% of the role is dealing with vulnerable adults on a daily basis, it could potentially be the employer making the decision of, "That's not a role you can do any longer because it's placing yourself, our other employers, and our service users at risk, and we're going to redeploy you into another role".

Perhaps they even take a further step of saying, "We don't have any other work, and we can only offer you work on 50% of the availability that we have". That does seem to be a bit of a harsh stance for employees to take, but I think for certain employers in certain industries, there will be necessary decisions that need to be made.

I think a lot of that has to come down to discussion, consultation, explanation, and those sorts of matters going forward with the employee, and I think part of it has to be about consulting with the employee and looking at the job role and risk assessing those aspects of the role that can and cannot be completed.

Scott: Can I just come in there, Seamus?

Seamus: Certainly, yes.

Scott: A lot of the case law that's maybe relevant but slightly tangential, but still relevant, comes from the European Court of Human Rights. A lot of it looks at proportionality and whether there's anything you can do which is less severe than refusing somebody something.

There was a Czech case, the Vavricka case, I think it was called, where it was deemed reasonable to exclude children from preschool because the parents refused to have them vaccinated against polio that came out. There may be something in there that's of value.

But even within Northern Ireland specifically, the reason for dismissal if you went down that route would be, presumably, some other substantial reason. It is not that they're refusing a reasonable instruction, because it's not a reasonable instruction to get vaccinated and put stuff in your body. It would be because the employer has concerns about the employee who isn't vaccinated and the risk that that might pose to others.

That would still mean you'd have to go through the one, two, three procedures. You'd still have to discuss things. You'd have to look at alternatives and different options and things that are more proportionate and less severe than termination.

That's basically the bottom line with this, isn't it? You have to try all those things, because if you just go straight into, "Well, you're not vaccinated, so we're not employing you", then that's too extreme. That doesn't fit with the statutory procedures.

Seamus: Yep, exactly. And that is about looking at adjustments and alternatives. You can go through that process. You can work through that process for three weeks or four weeks with the employee and come out at the end where there just isn't any alternative but to say, "We no longer can facilitate them. We're going to have to look at dismissal".

Obviously, all of those steps need to be taken in consultation with the employee, and if you're coming through to a dismissal, you need to follow the statutory one, two, three procedure in Northern Ireland to ensure the fairness of it, because it's going to be automatically unfair if you don't do that.

We're talking about the real extreme side of things, but I think that, potentially, as we're looking at a return to work . . . I mean, I think CIPD have said government guidance is maybe to start filtering back into work in June, and that's going to be a very gradual approach. But these issues are going to arise at that point, and decisions are going to have to be made.

I think it's a completely separate issue where the industry or the way that you work has changed as a result of COVID, and maybe that brings around redundancies or different ways of working and things like that.

But specifically, I think you're right, Scott. These matters, and particularly that European Court of Human Rights case, the Czech case, talks about proportionality, and the court did consider proportionality as one of the key aspects, essentially what the Czech government's position was on the vaccine and whether it was proportionate.

They made a decision that, in fact, it was proportionate, and they found that there was no violation of Article 8 rights for the right to your private life. And this included an acceptance by the Czech state that they couldn't enforce vaccines.

Rather, what they did was they said that if somebody refused a vaccine . . . and there are certain exceptions to that in terms of health and everything else. But if they refuse it, they would be fined.

So there were two punitive measures, really. One was you would be fined. Second of all, your child wouldn't be permitted to attend education sentence if they didn't have the appropriate vaccines.

For me, it's an interesting case. Certainly, looking at the human rights side of things, it would be a case that would be relevant when you come to give consideration to the employment side.

Health and Safety – Wearing of Masks

Scott: Okay. Could we move on just a bit? There's a related question that's come in from one of the listeners here, and this is as close to something, I think, as many employers are going to face.

What do we do if an employee refuses to wear a mask while at work?

All employees are required to wear a mask in this organisation. "Occupational Health Service advises that there is no medical reason that an employee cannot do this. However, this employee has anxiety issues. As a result, we've offered a reasonable adjustment of moving to another shift, enabling them to work alone without a mask, which they have refused because, presumably, they don't want to feel isolated. Meanwhile, they are still off sick. Where do we go with this?"

Seamus: Well, I think that that is typical. Ultimately, what you need to rely upon is the medical evidence that you've received. I'm not exactly clear from the question what medical evidence has been obtained. I know that there is no medical condition, but there is anxiety, and possibly you could understand somebody with high anxiety struggling to breathe. Maybe the wearing of a mask either triggers that or exacerbates the circumstances.

But there are potentially other ways to look at that. A face shield rather than a mask might be a possible alternative. But I'm sure that that has all been looked at.

Key for me would be to get some medical advice. If the employee is suffering from anxiety, I think the employer needs to get a clear understanding of what that means.

I think if you have a medical report from an occupational doctor to say that the person should be excused and can't wear a mask, I think you have to accept that.

I don't know that it is, but if it is the situation that the company or the organisation have done as much as they can in terms of getting evidence, to me, they have made an alternative at a reasonable adjustment to the employee. Yes, I understand the isolation, but presumably this wouldn't be for an extended period of time. You're talking a short-term, interim period until things are safe again.

In those circumstances, I would consider that if there is an alternative and if it is a valid alternative that has been suggested and refused, I'd really like to get to the bottom of what exactly the employee is putting forward as their reason for not accepting the offer or the adjustment that's being made. But on the basis of the information, I think that I would be pushing that and saying that it is an alternative.

Possibly, the isolation maybe is linked to the anxiety. I don't know. But the key thing has to be about the medical evidence.

Making of Record of Staff Vaccinations

Scott: Okay. No problem. There's stuff coming in here which is maybe a little bit on the personal side from the caller, so I don't want to get into necessarily all of those ones. You could maybe drop a line. You know who you are. I know who you are. You could maybe drop a line to Seamus at the end about that particular one.

Can I move on to another question here, which is not unrelated? You mentioned that one of the things you need to know is the position in relation to vaccination and therefore how safe it might be and indeed tying it in with the masks.

If everyone's vaccinated in the workplace, you probably don't need to wear masks as much. You probably don't need to social distance as much. You probably don't need to put in all those things. Hopefully, going forward, they won't be a permanent part of life. It'll be less dangerous, presumably, if everyone is vaccinated.

You were chatting about trying to find out who has or can be vaccinated. The next question we got in in was,

"Can we ask staff to let us know if they have been vaccinated, and can we keep a record of this?"

Presumably, there are data protection issues here and highly sensitive information when it comes to medical records and so on. What's the position there, Seamus, about asking staff and trying to keep records?

Seamus: Well, I don't think that there's any issue with an employer asking a member of staff either if they've had the vaccine or what their position is in respect to the vaccine. I would need to give some consideration to whether or not that would be something that you could include on a document for a recruitment exercise. I just maybe would like a little bit of time to think about that.

Certainly, for existing staff and in regard to risk assessments within the workplace, for whatever industry that you're working in, I think that it is a fair and reasonable question to ask the employee.

Again, you can't force the employee to provide you with an answer, but certainly, where there is a refusal, I think that you can investigate with the employee as to why they don't want to make a disclosure or why they don't want to provide the information.

But certainly, I don't see any issue in asking the question. I think it's particularly relevant as we're going through a pandemic. I think there's a justification and a clear reason for asking the question.

In relation to retaining data about the information, I think if it forms part of a risk assessment, then there's a justification to retaining data in that respect.

Again, I think you need to be clear with the employee that you're going to retain that data, and again, as usual, that you're only going to retain that data for the length of time that you need to retain it for. After that time, it will be disposed of.

But look, we're at a heightened point in relation to the pandemic. We're hopefully coming out the back end of it. I did hear, I think, Boris Johnson say that they hope by the end of June that we would be as back to a best normality as we could hope for.

But at the same time, depending on the industry and on the work that you're doing, it could be very relevant in relation to the employer's knowledge as to whether the employee has taken a vaccine or not, and even in particular in relation to an employee obtaining and getting symptoms of COVID down the line as well and what the employer's steps should be in relation to that.

For me, as long as you're able to justify the reason for retaining the information and that you're only retaining it for the timeframe that you need to retain it for, I don't have a problem with that.

Furlough

Scott: Okay. Well, let's move on to this question that's just come in.

Must we agree to put an employee on furlough?

"We have a member of staff who's refusing to return to work until he's received both vaccines. He has been requested to be paid furlough until then. We have been careful and COVID-free and have not offered furlough. Do we have an obligation to furlough this member of staff?"

Seamus: Well, I don't believe that there's an obligation to furlough a member of staff. Under the Coronavirus Job Retention Scheme guidelines, there is certainly the ability for an employer to place an employee on furlough who would otherwise be on long-term sick leave. That is an option.

But look, you always have to remember that use of payments and use of the Coronavirus Job Retention Scheme is going to be audited by Revenue and Customs. So you're always going to have to have that justification or you will be required to repay the money or you could be found to have used the system fraudulently. So you have to take all of those things into consideration.

When it comes to an individual who says they can't return to work until they get both vaccinations, my view in relation to this is I did come across that and I did have to provide advices in relation to certain individuals that were perhaps shielding and what was the employer's obligations in relation to those employees. If they weren't in a position to offer furlough, could they let them use their holiday entitlement for a period of time? Alternatively, could they simply take time off without pay?

The slight risk here for this one would be that there seems to have been some sort of precedent in place if the person has not returned to work, and I assume the person hasn't been at work for a lengthy period of time. If there have been on-going payments under the furlough scheme for that employee, it might be difficult at this point to move away from that.

Again, the key thing would have to be that you do a risk assessment, and that has to involve some information and medical information from the employee as to why they are not in a position to return to work now. I think that there needs to be a clear letter from the GP or from the occupational health doctor to say that the employee isn't able to return to work until they've had both vaccines.

I'm aware of one of my clients that had a similar circumstance, and they ultimately took a decision that they didn't want to get into a row or difficulties with a member of staff and they did retain them on furlough. But at the time whenever they thought the furlough was ending, they were concerned and had meetings with the employee to say that they were going to have to return to work. And they felt that they had taken appropriate steps in relation to social distancing, PPE, and also an amendment of duties so that the person wasn't coming into contact with members of the public. So all of those steps had been taken.

Ultimately, for me, where the employer is of the view that the employee can return safely to work and wouldn't be at risk, I don't see why the employer would retain an employee on furlough in those circumstances. If there's a job there for them to do and it needs doing and there are no medical reasons as to why they can't, I wouldn't be of a view that the person should be retained on furlough.

Scott: Thank you, Seamus. I see Rolanda has just dropped in the chat there the recent case of Rodgers against Leeds Laser Cutting Ltd. It might be relevant here. The claimant was found to have chosen to self-isolate and there was no serious imminent danger to his health, so the subsequent dismissal was not unfair, which is fine to that extent. But again, keep in mind, folks, you've got to follow the one, two, three procedures in Northern Ireland.

Long Covid

Now, Seamus,

Is long COVID likely to be viewed as a disability, and will employers be obligated to make adjustments for employees who suffer from this?

Keep in mind that we had about 40% of the people here who have employees who have long COVID symptoms.

Seamus: Well, this was a question, Scott, that had come in prior to our webinar, and you had helpfully sent me through some press clippings and some things like that in relation to long COVID.

I've been dealing with cases and work here for employers where there have been issues arising with someone that has been off on long-term sick leave. There are particularly frustrations with employees whereby the person seems to be fit and healthy for a couple of weeks. Then they're back off sick and unable to attend work for a number of weeks. Then they come back. Also, the symptoms are changing each time, and it raises a bit of an antenna for the employer of, "What exactly is going on here?"

I have to say I was surprised when I educated myself in and around long COVID. This is an article that had appeared in "The Guardian" on 1 April saying that over one million people had symptoms of long COVID in the UK. It doesn't surprise me on our poll today that we were looking at 40%.

The situation with long COVID appears to be that people either had a diagnosis of coronavirus or COVID, they had a few weeks where they weren't well, and just never recovered after that, or where they really didn't have any symptoms but since then they have had a blight of health issues arising.

And these health issues are not limited to people's ability to simply breathe normally. They are issues that are arising in relation to arthritis, liver disease, complications with the . . . I am taking a mind blank here, but all sorts of . . .

Scott: I'll help you, Seamus. You get things called COVID toe. You get COVID finger. You get enlarged hearts. You get bladder problems. You get all kinds of things.

And the bizarre thing about long COVID is that it manifests itself in different ways as you continue. So you can start off having some breathing difficulties, and then you think you get better and then months later, you start getting pains in your stomach, or you get a toe that feels like you've got gout or something like that.

They have no real idea of why it's moving around and what it impacts and whether it's attacking some dormant virus that's already in your system, but there are over 200 symptoms. It's completely bizarre that you have something as bad as that that could do so many things and seems to last.

The other thing if you're reading those articles is that there are so many people that go back to work because they think they feel great. They go back too soon, and they're knocked back for months after that.

I suppose the answer to the question, even in UK terms, it certainly would be defined as a disability south of the border where you don't have the long-term aspect, but even here where you don't quite know but there are loads of people who have been sick since the first lockdown and before, it's very, very likely to be deemed a disability, which brings with it the requirement for reasonable adjustments and suchlike.

Seamus: Absolutely. I'm just looking, and I am jesting when I say this, but one of the issues that arises is brain fog. That seems to be something that happened to me there.

We know the definition of a disability is a physical or mental impairment which has an effect on their ability to carry out normal, day-to-day activities. The effect must be substantial. The effect must be long-term. We're maybe at a bit of an early stage for a lot of people because it's maybe something that is only happening now, remembering that the first cases really were the first wave last March/April time.

But there is certainly evidence that long COVID is a serious medical condition. Normally, with disabilities, you're looking at it lasting more than 12 months. It would seem to me . . . I would agree with you, Scott, 100%. I think that there are going to be a lot of issues that are going to arise going forward, if not already, for employers with long COVID: absences, people not able to do the job that they were doing previously, having to look at reasonable adjustments, and having to consult and work with the employee possibly in terms of looking at flexible working and even the aspect of working from home and things like that as well.

Some of the stories that I've read here, people have just been unable to return to their work whatsoever because they've been so badly affected by it. So I think it is definitely one to watch out for. I don't think that it's something that we can sweep under the carpet or not treat as being significant or serious. I think we need to have our eyes open to it.

And just a bit of a warning that you could potentially be facing or looking at disability claims coming down the line as a result of dismissals or unfair treatment because someone is absent as a result of long COVID.

Scott: I think maybe the other warning for people listening today is that because it manifests itself in so many different ways and forms and seems to vary over time, you might think that somebody's got a sore toe and it might be long COVID, or you might think that they've got something else. I've seen reports of some employers treating it almost like ME was in the '80s, the yuppie flu. It doesn't really exist.

There is a tonne of evidence that there are long-term effects for people who got COVID. Keep in mind that most of the people who died were older. Most of the people, by definition, who have long COVID are younger. Therefore, it's really impacting on the workforce.

There are loads of people listening today who will have employees who are going to have long-term health problems. We don't know for how long, but they've lasted for months thus far and they're impacting on their ability to do all kinds of day-to-day activities like walking and lifting and going up stairs and whatever.

So I don't think there's any doubt, but it's one of those ones that because it's disguised as many other things . . . and they may not even have tested for COVID when they got it. They're just feeling rotten or something has happened. It's a really invidious, horrible little thing that's coming along. It's going to be arising, I think, in months to come.

We have to move on, though, Seamus. I want to deal with the last question, and then we'll end just a couple minutes later than planned.

Hybrid Working

It's because we did this other part of the survey. Eighty-seven per cent of the people here are saying that they're going to be looking at hybrid working. They're either consulting or about to consult.

"So what should we be doing now as an organisation to prepare for hybrid working once restrictions are eased somewhat further?"

Seamus: I think that where we're at, at the minute, is the government's message at this time is still, "If you can work from home, you should work from home". That is going to change over the next lot of weeks. We know that on 24 May restrictions are going to ease again, and government have said that there will be a gradual return to the office. Certainly, in England, they're talking around end of June time for that.

I'm aware of some big, multinational employers in Northern Ireland that are calling for the staff to look forward and to advise them if they would like to return to the office . . . they're almost taking a poll of their staff to see if they would like to, and talking around things like how they'd like 20% to 25% of staff to return to the office between June and September. So it's definitely a factor. It's definitely there.

You know the situation as well. Some people really love working from home. It's the way that they want to continue to work from home. Others don't like it and want to get back to the office. Then there's this hybrid aspect where people are saying, "Well, I could work in the office couple of days a week, maybe two, but I'd like to continue working from home for three days. I get more done at home. There's less distraction, and I have flexibility and all of those things".

In terms of steps that we need to take, I think the immediate steps need to be in and around risk assessing and seeing what the position is as regards the facilities in the office to keep social distancing in place.

I think there also needs to be a business risk assessment. You need to determine if there are roles that should be prioritised for returning to the workplace. Are there certain roles or aspects that you're saying, "They need to come back sooner, and they need to be the first people that come back"?

Identify those employees that need to continue to work from home in the short term because they're vulnerable or they have on-going health conditions or they're undertaking caring responsibilities. We know that the summertime is coming up. Children are going to be coming back out of school again.

Again, calculate your safe office occupancy levels in order to maintain social distancing within the office.

But I think, importantly, it's about communicating with the staff. It's about communicating with your employees and putting together a plan. "Who's going to work from the office? Who's going to work from home? Do we need to change the way we do things in work? Are we going to have certain days where this is the sort of work that we're going to do? Are our meetings going to take place on certain days of the week and we're going to use our other time for other activities?"

It's important to consult with the employees and their trade unions where you need to and look at a plan for returning to the workplace and encouraging the staff also to raise any queries or issues that they have.

A big part of it is for the employer to listen to the employees and to hear what they have to say. It has been a period of flux, and there will be issues, and there will be a big change for people coming back out of working from home into the office again. So it's about taking all of that on board, listening to what the employees have to say, consulting with them, and looking at prioritising what the business needs are.

Scott: Okay. Thank you very much, Seamus. I suppose we really just have to decide why we need to go into the office and use those reasons as the ones for going in. You don't have to be in the office to answer emails. It should be maybe, "We're going to be creative today. We're going to have our team meetings. We're going to do whatever, assuming it's safe".

I think we all have to look at that, and that means that forcing people in when they really don't want to go in and when there are other organisations that aren't going to force them, it just means that you're going to end up losing staff over time. It's a big HR issue just about the thing.

But look, if 90% of people are saying, "We can work hybridly", and 90% of people go ahead with that, then we're all in the same boat, so that's fantastic.

Seamus: Fantastic.

Scott: Thank you very much, Seamus. Thank you very much, everybody, for listening. You will be able to listen back to this. It will be turned into a podcast. You can get it where you get your podcasts with these Employment Law updates.

Our next webinar that we've got with Seamus is in June. Jeepers, the year is flying by. It's 4June, the first Friday in June. Hopefully, we'll see you then.

Send your questions in, in advance. That allows us to do a bit of prep and make sure we can give you the appropriate, up-to-date answers that we can.

If you need anything else, give us a call at Legal-Island. Hopefully, I'll see you on the 20th at the Wellbeing event. We'll be dealing with many of these issues in a lot more detail.

Okay. Thank you very much, folks. Goodbye. Bye, Seamus.

Seamus: Bye-bye.

        

This article is correct at 06/05/2021
Disclaimer:

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Seamus McGranaghan
O'Reilly Stewart Solicitors

The main content of this article was provided by Seamus McGranaghan. Contact telephone number is 028 9032 1000 or email seamus.mcgranaghan@oreillystewart.com

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