On 4 January 2021 the UK entered its third national lockdown, resulting in the closure of all non-essential retail stores and the move to remote education provision in respect of primary schools, secondary schools and colleges across England. However, schools would remain open (as was the case in the first national lockdown) for the children of key workers and vulnerable individuals.
It is anticipated that this lockdown will remain in place until at least the middle of February, albeit there are murmurings that these timescales could be extended further due to the significant pressures on the NHS and the suggestion that individuals are not adhering to the strict guidelines.
What has been amplified in this lockdown is the balancing exercise of enabling workers to work from home (where possible) whilst juggling childcare responsibilities. Further, there is the additional balancing exercise of ensuring that those key workers operating in an educational setting are kept safe versus the need for the parents of the children of key workers being able to carry out their roles effectively. The aim, generally, is to try and offer some stability to individuals so that the economy can continue to operate, along with trying to preserve the health and interests of the many. It is an incomplete paradigm for which there appears to be no right answer.
From an employment perspective this unearths several novel complications, including but not limited to:
- An increase in potential s.43B, s.44 and s.100 ERA 1996 claims. On the one hand you have individuals claiming that they have no alternative but to come into work (due to the nature of their roles). Those individuals may be experiencing poor health and safety practices, potential risks which may present a serious and imminent and danger and potentially dismissed as a result of their refusal. This is then contrasted with an employer’s position where risk assessments, practices and procedures have been invoked in order to reduce risk (notably the obligation is to take reasonable steps to reduce risks, not to eliminate them), an employee’s refusal to engage with working practices, despite there being no serious and imminent risk (albeit perception will inevitably cloud either parties judgment on this) and the financial challenges which inevitably places pressure and potential job losses on the operations of a business;
- The closure of schools (save for vulnerable and key workers children) which on the one hand is intended to act as a preventative measure following the new strain of the coronavirus, to be balanced against a parent (single or otherwise) who may be trying to operate from home whilst addressing the highly demanding needs of their children. As the first lockdown has shown, the challenges are significant and as many articles have recently shown, this situation exposes those individuals (statistically, but not solely women) who remain at risk of falling behind at work, whilst also potentially exposing this group to a greater risk of job losses. From an employer’s perspective they require a degree of operational functionality and have to try and balance the demands of the challenges to its business against the personal difficulties encountered by its staff. In some cases, this is not viable and thus that resulted in the loss of around 2 million jobs last year;
- Shielding issues and risk factors. Shielding has come back into effect for the clinically extremely vulnerable due to the risks of the latest strain of the virus. This impacts not only individuals (particularly in a key worker setting) many of whom are separating themselves from their own family in order to reduce transmission of the virus, but also the workers, who themselves are fearful of contracting the virus due to their vulnerable status. For employers, where it is not possible for these individuals to work from home, again there is the need to balance its operational needs whilst ensuring its compliance with the provisions dictated by the Equality Act 2010; and
- Recruitment stresses. Recruitment has seen seismic changes throughout the pandemic. Due to the significant job losses throughout the pandemic, many will have seen the calls on various social media platforms for those “seeking new employment” and engaging in a candidacy run off where 100s of applicants are competing for, perhaps, one or two roles. Not only is this a challenge for individuals but also employers, who are faced with a wealth of competing applicants, many of whom demonstrate excellence on a number of key criteria. For those who continue to look for work the key is to remain resilient, to assess their applications critically and to seek feedback on any rejections (if provided) on each occasion in order to update applications accordingly. For those recruiting, it is important that they operate a balanced and non-discriminatory approach to the criteria applied and to show humility to those who have taken the time to apply for a role, but may or may not be successful in their application.
Whilst it is impossible to determine what the future will look like, as this will depend on and be dictated by a number of variants, it is arguable that the following may occur:
- Rise in potential redundancies/restructures – due to the various business closures and lack of revenue and profit generated by businesses during lockdown, combined with the additional challenges of Brexit and potential removal of the furlough scheme in the future, it is arguable that there will be an increase in this area;
- Increase in discrimination claims – taking into account the categories of individuals who are a heightened level of risk following the pandemic, whether because of gender/disability etc. if employers do not ensure compliance with the Equality Act legislation when carrying out their practices, they may unwittingly give rise to these types of claims;
- Increase in requests for parental leave/holiday leave – in order for parents to try and manage the challenges of balancing childcare and work responsibilities;
- Flexible working – taking into account that many businesses have now been operating a working from home model since March 2020, when restrictions do ease, it is probable that individuals may continue to request that they work from home, especially if this has been feasible for an extended period of time. Employers will therefore need to consider and apply logical reasons if such requests are to be refused and on what grounds;
- Increase in Employment Tribunal claims – following the initial lockdown and pre-existing backlog of claims, most claims are now not being listed until the end of 2021/2022 at the earliest; and
- Mediate rather than litigate – taking into account that most Tribunals are not taking place for approximately 12 months, mediation may offer a quicker and more desirable solution for the parties. It can reduce costs, facilitate solutions that the Tribunals cannot offer and potentially expedite closure on issues.
Ultimately there is no quick fix solution to the impending challenges facing individuals and businesses alike. Various schemes have been introduced throughout the pandemic in order to try to weather the storm, from the CRJS to grants and loans for businesses. Whilst those measures may help balance the situation for some business in the short term, for many the pandemic and its after effects will impact for a significant period of time to come. Further, it seems clear that the future taxpayer will likely be shouldering a proportion of the burden of the emergency fiscal measures put in place, long into the future.
As society comes to terms with the new normal, two things should resonate:
- “People will remember those who showed humility and helped others throughout this pandemic.” Do not be in the category of those who use this as an opportunity to take advantage and, where you can, help others as a responsible social citizen.
- We all have a balancing exercise to undertake, whether individuals in society in terms of their actions to balance social distancing with their economic health/livelihoods or indeed for legislators, in balancing the needs of a diverse, legal protected, swathe of employed society.
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