It's been said that 2020 was an unprecedented year, but perhaps 2021 will be an even bigger test. Last year, businesses had to deal with the final countdown to Brexit coupled with a pandemic that still continues to plague the world.
This year, employers will again need to juggle a number of issues, but I want to touch on five in particular: the importance of businesses planning for the end of the furlough scheme in April 2021; how to deal with the expected rise in employment litigation; inclusion and diversity; changes to working patterns, and employee wellbeing.
Furlough scheme
Last year saw one of the biggest changes to UK employment law in decades, with the introduction of the furlough scheme. The Coronavirus Job Retention Scheme was rolled out quickly, with employers encouraged to embrace the scheme in an 'act now, ask questions later' approach. Well, towards the end of last year we saw slightly aggressive behaviour from HM Revenue and Customs (HMRC) with the crackdown on 'furlough fraud'. Now, while employers are being encouraged to keep using the scheme, we know that uptake has steadily decreased over the months. However, employers that did use the furlough scheme at some point need to ensure that the scheme was utilised correctly.
HMRC has also started publishing the names of companies using the furlough scheme, which is likely to attract media interest from companies using furlough and announcing strong profits.
How to deal with the expected rise in litigation
There is a known correlation between recessions, mass redundancies and increases in employment litigation. Last year, we saw the start of this and it will certainly increase this year. It's likely that most claims will be for unfair dismissal as things may not have been handled properly and with tribunals bearing no fee, former employees are more likely to take this route. Therefore, if your business is going through mass redundancies, you need to not only make sure that things have been handled according to the law but also factor in how much possible litigation could cost.
Inclusion and diversity
Events of 2020 put inclusion and diversity back on the agenda particularly when it came to disparities between certain racial groups and opportunities in the workplace. There's also a lot of momentum to introduce mandatory ethnic pay gap reporting. These are all changes that should be embraced and celebrated by businesses. However, inclusion and diversity doesn't end at race, ethnicity and gender. It embraces respect for all identities whether an individual has a protect characteristic or not. Employers should really be trying to be ahead of this change.
Remote working
With people working remotely, employers may find that there are lots of positives such as, sustained or increased productivity, adaption to technology and cost-savings. These advantages have led many businesses to consider reducing office space but, there may be some long-term downsides that employers have not yet considered.
Perhaps, home-working has worked so well because the office existed first. For many employees, working relationships had already been established, as well as knowledge of the company and the job role. It's likely that employers embarking on permanent remote working are likely to see issues when it comes to onboarding new employees, dealing with exits and proper handing over of work and confidential information. Furthermore, there are an array of cyber and data protection issues that are likely to surface with permanent homeworking. Also, managing employees, ensuring they are happy and feel supported in their role and career progression will be tricky to manage with a remote workforce, particularly for junior staff. This year it will be important for employers to plan how to manage requests for permanent remote working, in line with business short-term and long-term needs.
Monitoring of employee wellbeing
Widespread remote working has presented employers, particularly HR teams with a dilemma of how to monitor employee wellbeing and also a conundrum of what exactly their role and responsibility is when issues arise. To address this some employees are looking at how technology, such as devices or apps, can be utilised to monitor for signs of poor mental health and provide solutions. While, it's laudable that employers are taking steps to address these concerns, this data does count as special category data so has stringent rules for how it is processed and used and also could bring about culpability issues. This does not mean that employers should not be looking at different ways to monitor wellbeing but that it has to be rolled out in the right way with legal advice from an employment law and data privacy laws.
Ranjit Dhindsa is head of employment, immigration and pensions at Fieldfisher
