The way many of us work has changed dramatically, probably permanently. Employers have already prepared for the 'Big Return' at least once before, but that was before widespread testing was available and before anyone had received the vaccine. To what extent can employers take advantage of those developments in making new plans? Plus, now we have been working this way for a year, what are employees' expectations, what are their rights and what are employers' obligations? Jonathan Chamberlain helps you keep ahead of the headlines.
Transcript
Michael Luckman: Good morning everyone and welcome to our spring ThinkHouse programme for 2021. I do not know about you but after all the long dark lockdown days of the last couple of months, it feels really good to be waking up in the light and seeing the sunshine and the birds singing, and smelling the flowers during day, it is really wonderful. If only the children were not at school we could share all that with them. That is only a joke of course, so many people are pleased to see the back of their children for a while!
This is the first of a series of four ThinkHouse webinars. We will be looking at data sharing, human rights and governance, and customs and duties later in the programme.
It is fair to say that when we ran the ThinkHouse programme this time last year, it was our first fully online programme and although it was well receive at that time, we did not think that by this time it would become the habit and the norm, one year later.
Obviously some things have changed from the old format. I do not need to show you where your fire exits are or ask you to set your mobile phones to stun for those Trekkies out there amongst you. But there is some housekeeping. This is a curated discussion via webinar, we have allowed an hour, we will be taking questions along the way and afterwards and if you have a question, please raise it with me directly via the Q&A button at the bottom of your screen and I will marshal them accordingly. We can take them on the way through, or we can take them at the end as well. The webinar is being recorded and we will share the link with you after the event, either for you to review or to pass around your colleagues, please feel free to do that.
At the end, we will be asking for some feedback on this event and, very exciting, looking forward to the possibility that we might physically be back in the office for our autumn series, we will be running a quick poll if you please, on how many of you will be likely to attend a physical event.
However, some things remain the same despite the new format. We do aim to deliver our loyal audience high quality speakers. Yes so that is you Jonathan, covering a mixed diet of regular catch-ups and interesting topical subjects that we think will impact your day to day, or are useful in providing a wider context on significant legal trends.
Today's topic is COVID-19 and how it will impact our relationship with our workforce and future working practices. In common with many businesses over the last few months we have had to face a host of challenges as we have had to adjust to changing markets, resourcing challenges, welfare needs and stretched corporate cohesion.
Normal practices once taken for granted, in particular the central office as a place of work, are being called into question, or reinvented. Remote working has changed the way we interact with each other, for better or worse as this seminar demonstrates and even now we are looking to a future where on the one hand, we face demand for significant flexibility both locally and from a distance, and on the other, the need to retain our ability to train, supervise and develop everyone effectively and generate esprit de corps.
To explain some of the questions falling out of this changing environment, I am delighted to be joined today by Jonathan Chamberlain. Star of stage and TV and partner in our employment team who is helping not only many of our clients address these issues, but also helping advise our own organisation on how we respond to this environment.
So, Jonathan what do you think are the biggest issues you are coming across so far?
Jonathan Chamberlain: I think there are probably three. Before I go into them Michael, just picking up on something in your introduction. Can I just put in a plug for a blog written by my friend and partner, Jane Fielding. We will give you the link in the follow-up email which we send from this webinar, but Jane has some really interesting thoughts on why it is good for us to go back to the office, as a society. As usual from Jane, both unique and insightful. So, if you already follow our looped in blog, you will already have seen them, but if not, please look out for the email.
Back to your question, what are the biggest issues so far?
Well the issue that is making the biggest noise is the idea of compulsory vaccinations for employees. 'No jab no job'. But outside of certain sectors, all healthcare, social care being obvious ones that is not really an issue yet. It may become one later on, but at the moment it is more noise and media excitement than practical reality.
The most questions that we are getting now are about coming back to work. Can people stay away? Can we require them to come back to the office? And my own view, although this is not an issue which has yet come up, but I think is a bit of a ticking time bomb, and it is connected with that pressure to return to the office because when we start pressing people to come back, then I think employers are going to find out about some of the new and remarkably effective ways their managers have been learning to harass their own people through the medium of a video camera, rather than in person in the office. And I think that there is a bomb there waiting to go off.
Michael: Do you mind dealing with the 'no jab no job' - surely it is an issue in some respects?
Jonathan: Well it clearly is an issue in some sectors, and we will come onto that in a moment, but most of the noise around this has been generated by people like - well, people in particular, Charlie Mullins at Pimlico Plumbers who has said that all his plumbers will have to have the vaccine or they will not have a job and he is prepared to take this issue up to the Supreme Court if necessary.
And I think, me and many other lawyers wish him all luck with that! It would be excellent to have the law clarified in this area but the reality as to where we are now, is that until we have universal adult vaccination, and outside of healthcare and social care, it is very unlikely for any policy by an employer saying that 'in order to keep your job you must have the vaccine' to be lawful.
Now, just breaking that down a moment if I may. Firstly, that is clearly not the case for healthcare and social care and the reason for that is twofold.
Firstly, it is easy to build a case for compulsory vaccination in sectors where people have no choice but to have close physical contact with the people that they are caring for. Social distancing does not cut it in a hospital or a care home. You have to be up close and literally personal with the people that you are working with.
There are no alternative measures that can be put in place and people in health or social care are very vulnerable. We have seen the damage that this disease does in care homes in particular.
For an employer in the care home sector to say, 'before you join us/before you work for us you must have had the vaccine' is, on the face of it, lawful/a reasonable requirement, and also probably for them to impose it on their people who are already working for them because you have to distinguish between new recruits and those already in work. It is much easier to impose a requirement for somebody joining you than it is for somebody who is already there. If they are there, you are changing the contract as opposed to entering into a new one.
But the second reason, not just the need for vaccination, is the availability of it. Because of course, people working in healthcare and social care were amongst the first priorities to get the vaccine. So if you are in those sectors, you can get the vaccine. Whereas, of course, at the moment, you cannot necessarily get the vaccine. You and I can have it Michael because we are of a certain age. I get mine on Thursday, all being well.
But you can see immediately that a policy that says 'well before you work for me you have to have the vaccine' is discriminatory on age grounds because if you are younger, you cannot get it. But you can also see that an employee who is with you and refuses to have the vaccine might do so on - not an unreasonable principle that well, actually I think teachers should have it before plumbers - to pick an occupation at random, then you are into issues of, if you dismiss them for failing to take the vaccine are you in fact dismissing them for their belief which leads you into territory of unlimited damages.
Now, so I think it is highly unlikely that in the next few months you will see employers trying to enforce these policies and I think two very important points to remember.
Taking the vaccine is invasive. I mean it literally pierces the body so for an employer to be able to require somebody to do that, requires quite a high threshold. We do not, for example, make the flu vaccine compulsory for employees now, although interestingly enough for example for long haul airline pilots, they are required to take malaria tablets. It can come in, but it is very rare.
The second thing is, in the COVID-19 regulations themselves, the government has not taken to itself the power to make vaccination compulsory. So the state cannot do it. You have to query whether and in what circumstances a private employer would be able to do it.
Michael: Thank you Jonathan. Obviously I am only 27 so I have still got a long way to wait for my vaccine. If not jabs, much of what you are saying does not seem to apply to compulsory testing. Is the rule different for the compulsory tests?
Jonathan: I think here it is a more nuanced position because the compulsory testing is not so invasive, for a start and you do not start to get into issues about whether people have religious beliefs around whether they should be tested or not. Where you can see in circumstances where you are saying it is compulsory to have a vaccine, you can run into discrimination arguments, but with a test there may still be those arguments but there will be fewer of them.
However, again, we start from the point of view it is still an invasive procedure. It is not as invasive as a needle through your skin but taking a lateral flow test is pretty unpleasant, if you have ever done it. And a standpoint I think to come out of this is, is it really necessary or are there other things that an employer can do?
So for those of us who work in an office environment, will social distancing work? Would compulsory mask wearing work? Is it actually necessary to have people tested? Are the tests effective? And that is even before you start to get into the data protection issues, for example. What are you doing to do with this data once you have it? How are you going to make sure that people have done the test properly, if they are doing it at home before they come into the office? What realistic protection is this offering you and what is your benefit from it?
If you are dealing with just the office environment that is one thing, but if you are dealing with an environment where people are having to have close contact with the public so, for example I can see in theatres or other areas where large numbers of the public are going to be gathering in close proximity, you can begin to see how an employer could justify requiring employees to take a test beforehand, but it is going to be very case specific. Very site specific, very job specific.
I would say with that it is more possible, it is possible now as opposed to issues around 'no jab no job', which I do not think are really going to come into practical consideration until we have universal adult vaccination and then you will be doing the same sort of balancing exercise looking at alternatives etc. but that will be very fact specific.
Michael: Okay and you mentioned on your way through, sort of, beliefs. What about the anti-vaxxers. Are they protected in law?
Jonathan: Well. There is a nuanced approach to this Michael. And that is to say, that a libertarian belief that the state should not be able to require people to stick a needle in themselves is a respectable opinion and as such it should be respected, and that is a reason for people to refuse the vaccination, then that needs to be treated in the same way as a religious belief.
I am not sure that I would go that far actually. I would place that belief in the same category as I would a belief that having the vaccine means that you are being controlled by Bill Gates or George Soros, to use the technical expression 'it is not a belief worthy of respect in a democratic society'. I do not see employment tribunals having any sympathy with the out there anti-vaxxers, 'this is all some sort of globalist conspiracy'.
They may have some sympathy with the libertarians but I think not much. I mentioned airline pilots a before, that is a situation where it is clearly accepted that if you are flying long haul into malaria zones, you need to take the medicine for the protection of you, your colleagues and your passengers. And I think in the situation we are faced with now, that tribunals are going to say, a belief that I should not take this on principle is not one that is worthy of being upheld. But I can see an argument around that. Around the pure anti-vaxxers not a chance!
Michael: Would you mind going back briefly to the lateral flow test. We have had an interesting question in saying 'you do not make it compulsory but you recommend and given the sort of balance of power between employer and employees are there any concerns around the sort of implicit pressure about an employer recommendation that you take lateral flow tests?'
Jonathan: In principle, no. In practice there are recommendations and there are recommendations. There are offers that you cannot refuse. Though in principle I think a recommendation is a good balanced way to do it. My impression of seeing people around is that largely we have, as a society, pulled together on this. Of course there are people who ignore the regulations etc. etc. but most of us keep with them, most of the time. And I think a properly communicated 'it will help us to help you if you take these tests' policy is lawful. If it is a back door compulsory testing, then that is another thing entirely.
Michael: Thank you Jonathan. So, probably the big question and especially as we all start to feel the relief as we perhaps see some light at the end of the tunnel, will employers be entitled to require everybody to come back in?
Jonathan: Hmm. The short, but incomplete answer to that, is no. I think the world has changed. There is a facile answer which says that every employee has a section one statement which specifies a place of work and it is most unlikely for most of us that that place of work will be our kitchen table or at home or wherever. It will be the office or the factory, where we worked before.
That section one statement could well have the force of a contract, could be the contract! So, our starting point is, there is a contractual requirement that this is where you work. So, in theory it should be just as simple as saying, okay we are back to work now, your contract says you work here. You work here. It is a reasonable and lawful instruction for me to require you to come back to the office.
And I think, even after the first lockdown that is a point which had some force. The first lockdown was a temporary emergency measure and if someone had said, well it is clear the world has changed and I do not need to work in the office anymore AND my contract has changed, would be pushing it. But as you said in your introduction, none of us envisaged a year ago that we would still be in this place! And actually we are still going to be in this place for several months to come.
I think there is an argument that the term in the contract, has by implication, changed. Because in many cases it is clearly not necessary for people to be in the office. So I think simply pointing to the clause is not going to be enough. It has some force but not as much as it used to. So, I think the longer answer to your question can we require people to come back to the office. We can ask. We should have, if not evidence, at least a cogent supposition that people should come back into the office, so for example with some research based organisations that we work with, they are able to show the slowing down in the pace of projects that has come about after people have been working from home.
There is a correlation. And that correlation is strong enough, it seems to me to say, we need you back as opposed to, we want you back. Similarly in professional services firms, we have noticed that work has drifted upwards. Because we can measure that. And juniors are not getting the experience that they once did and that correlation, it seems to me, is enough to say, no we need you back as opposed to, we want you back.
So that establishes our policy and then we have to apply that policy to individuals and look at their individual circumstances. And here is where it gets tricky because many people will have found that working from home really suits them. They personally are more productive, their individual performance will have gone up, because that has happened and it really suits them to be at home.
Things that were once sources of immense stress and difficulty. The fact that the nursery shuts at six o'clock on the dot. The fact that, if you are not there to pick up your child from school - do that two or three times and you get an automatic notification to social services. You do not have that pressure if you are working only a couple of streets away from the school or the nursery.
People could now say, it is of massive benefit to us, working from home and we want to be able to carry that on and if you are then requiring people to come in, you start to get into issues of, indirect sex discrimination. I want to stay at home because it is easier for my childcare. Childcare is universally recognised as a burden which falls more on women than men, you therefore have a policy which disproportionately impacts on somebody with a protected characteristic and you then have to justify it so you are back to, why do we need YOU to come in. Why do we need this policy?
I think it has to be handled sensitively and that is even before we start to get into the issue of is the workplace safe and the necessary communications that we are going to have to do around, telling people it is okay to come back into the office. We have done all the things that we need to do to make this a safe environment for you.
Michael: How does that play with Jane's argument in her blog? Because you have a balance here between the individual need/individual benefit and the corporate benefit. Where, as I understand Jane's argument, she would say there is a very strong emotional corporate cohesiveness morale building esprit de corps reason why everybody should come into the office. How do you play that? Is that one of your policy arguments you can deploy?
Jonathan: Absolutely it is and Jane's argument is actually one that goes beyond that and is probably not an immediate practical relevance to any one employer but is to employers as a whole which is that, in the workplace things are evened out and we have to interact with people who are not like us. We are not able to sit in our silos, whatever forms those silos, be it race, be it class, be it sex, be it religion we have to mix and that is a good thing for a society.
It is also a good thing for an organisation, and I say professional services we can measure it because we can see the flow of work going up. Senior lawyers are more busy than junior lawyers in these circumstances. It seems to be that even if you cannot measure it, you have that reasonable cogent supposition that I mentioned at the start, that a cohesive organisation is a better functioning organisation. And I am sure there are lots of business school studies that back that up and if you can say that physical presence is an important part of achieving that cohesion then you can ask for it.
We may all need to be more creative about how we do it. So perhaps not simply relying on the Monday to Friday 9-5, but having days where everyone has to be in or actually the residential may make an appearance, which I mean as an employment lawyer, I would thoroughly welcome, because of all the things that go horribly wrong on residentials, but as organisations, we may have to start looking at these shorter form periods where we can really bond the team and build cohesion rather than simply relying on people being the in same place at the same time over long periods.
Michael: Thank you. Couple of questions coming in, spinning out of that discussion. One talking about those who have been vaccinated and those who perhaps have not been vaccinated. Could you reasonably apply different approaches to people, require a different policy that those who have not been vaccinated, you know need to wear masks or cannot come into the office, can work but cannot come into the office, whereas those who have been vaccinated, can?
So what extent can you discriminate between those who have been protected and those who have not?
Jonathan: I would caution against that and the reason for that is, there will be some people who cannot be vaccinated because they are medically vulnerable and if we are denying opportunities to them, then we are going to run straight into disability discrimination arguments.
In principle I can see problems. Now in practice, again in particular environments we may have to say, it is better for us in some defined way, to get people back into the office and because we have the opportunity to get some people back into the office more safely because they are vaccinated, we are going to bring them back in, now. And I can construct a hypothetical where that might be the case.
However, instinctively I am cautious about that. If you can do it from the basis of need or a strongly evidential supported desire, then let us talk about it. But it is not something to be done lightly because I can see all sorts of problems.
Michael: Okay. I have a question here, but I will put that back until after this next question because I think we can answer that in the context of the two sides of the equation which is, can we require people to come back in? What about the reverse? Can we require people to stay at home? Can we abolish the office?
Jonathan: Some organisations are already talking about doing that. Some already have and on the face of it, everyone wins. The employer saves the overhead and if people have been working effectively from home so far, then people save the commute and they do not have to go in and it is a complete win-win so it looks easier than the reverse, requiring people to come in.
It is not though, without its problems. Because there are some employees who find working in the office much easier and we have talked about this. All organisations have talked about this. Working from home is easier if you have a big house! Or if you have got any sort of house, or any sort of garden. For young people starting out, the flat shares. There is always the example is there not of, the army morale problems in Northern Ireland started after the peace process and they stopped going out on patrol because all the barracks in Northern Ireland were built for troops who were going to be spending most of the time out on patrol, not on top of each other.
So there are some people who really want to get back into the office because it is much better working conditions than what they have now. And running in parallel with that, is a decent working environment, a social working environment could be part of the wage-work bargain that every employer makes. That a nice place to work is part of your reward! That, here is somewhere that you enjoy coming to. That the social contact you get, the relationships you get from the office, the friendships that you can make in the office are valuable to you.
I can see situations where employees will say, if I am not coming back into the office at all, that was part of the deal. I enjoyed that. I am not working here anymore. Now, for many employers there will be a 'so what' about that. There will just be natural staff turnover, some people like working this way, some people who will not.
If you have a sales force, for example, and you can say we do not need an office at all, and a sales person says well, actually being able to meet the team, this is a really lonely job, I really enjoyed that, that was part of it, so that is it, I am off - that is a constructive dismissal and they then walk free of their non-competes, then you may have a problem.
It is easier to do it that way around Michael, but it is not without risk and you need to do it carefully.
Michael: Thank you and the question - I think she must work in a council and she was saying that many councils do not have a specific location in their contract or if they do it is any council office in the borough or you can work from home if it is agreed. She is making the point that in the public sector in her area, that they are revaluating the office space and wondering whether working from home is going to be the new norm and indeed, possibly pointing to some productivity improvements with people working from home rather than the office, and her hanging question is whether we are picking up any different approach in the private sector, compared to the public sector?
I might add a bit at the end from our own approach actually if it might be helpful, but I wonder Jonathan what you have observed.
Jonathan: I do not think we have seen trends to the same effect actually, and it goes back to some of the things that you have identified already around team cohesion, that that is valuable and the private sector is prepared to pay more through office space to gain the benefit from that. Will offices be smaller? Almost certainly. Will people be spending less time in them? Almost certainly. I am not seeing many or a private sector company saying, 'that is it, we abolish the office'. That is not happening yet, no.
Michael: Yes. If I might venture an opinion on that or certainly share some things I am just observing in the market. One is, commercial property office letters are not holding back. They might be renegotiating some terms at the moment in the short to medium term to sort of hedge their bets, but they are still pretty confident, certainly in their assessment of the market that there is longevity in office life in the medium term in any event. I think certainly as an organisation ourselves, being private sector and therefore very dependent on clients and client views and client reactions, we are waiting to see on that.
I think there is some highfaluting press about how we are all going to live in some kind of hyper-space world and have a nirvana of everything around us exactly as we need it. But actually some of the early feedback we are getting from clients is that they are looking forward to the kind of personal interactions that the private sector rightly ought to deliver for them as an experience.
Whether it be at 100% in terms of how it was before, that all clients will want to go back to a personal relationship face-to-face with difficult issues with their lawyers, the jury is still out. And you will have seen various press reports and various organisations from Goldman Sachs to others, saying that the office is not dead, they are big believers in all of this and certain types of work will lend itself, particularly heavyweight transactional work will lend itself to that kind of closeness which will require an office.
That said, what you have said Jonathan about the workforce is definitely true. Our own polls would suggest that right now, the majority of our workforce, given the choice would probably work two or three days a week in the office and the rest at home. It is just that actually nobody wants those days in the office to be Monday and Friday, which causes some real problems as to how you man the office.
I mean, do you staff the office for the Wednesday or do you staff it for Monday because the occupation will be very different on those days. And the other thing that happens around the office is how do you build your office if it is a hybrid office, which is only partially full most of the time. Do you build it for individual working or do you build it for the kind of communal working opportunities you would want to build into an occupied office in order to drive that collegiality and team spirit that you are looking to engender whilst people are in the office?
Actually, funnily enough, far from being flexible, we actually think it is going to be very inflexible because to have people working together as you want, you actually need quite a degree of planning. Everybody needs to know that this team is going to meet on Wednesday at this time in order to ensure that everyone is in.
The only other final thing I would say is, everyone is looking at floor plate. Real estate costs money, costs need to be passed onto clients and are there opportunities to reduce costs to clients through reducing floor plate or using it more effectively?
There are so many things in the balance I think, so in answer to your question, definitely the private sector is looking at it but it is probably a bit more jury out. I do not think it is running towards the remote office or the absolutely remote office. I think there is a few firms doing some experiments right now and a lot of people are watching to see whether they will work or not.
Jonathan, if we can abolish the office, how about people working abroad? I mean, you and I have had a couple of internal discussions about this of late too, with varying degrees of satisfaction, but how about being able to work from abroad?
Jonathan: Yes! And we have come across instances where employers have discovered that is actually what their people are doing already, they just were not aware of it.
In principle, once you can work remotely then that can be from anywhere if you have a reliable internet connection. However, there are, I think, practical and jurisdictional issues. Dealing with the practical ones first. It is not true to say that you can work from anywhere with a reliable internet connection effectively with your colleagues, unless you are going to live your life in a very odd way.
So, for example, someone saying, I want to work remotely from the west coast of the United States, is for their normal working hours in daylight, not going to be at their desk at the same time as any of their colleagues in the UK. Because there is very little overlap in the working day. Now that might be, an advantage. You can have your very own nightshift in an organisation for example. But in cases where you need regular interaction, easy interaction with the team that is not going to be practical.
Be much easier though for somebody who is living on the east cost of the US because actually, a lot of the working day then does overlap. Setting aside those practical issues, we start to come onto the jurisdictional ones.
There are issues for any manager in dealing with somebody who may be subject to a different form of employment from the one that they are used to. It is possible that people who work in a particular location will have local employment law rights. So if I want to fire somebody for gross misconduct, then I might not be able to do it in the jurisdiction in which they are operating. They have rights against me. That will work very much on a jurisdiction to jurisdiction basis. You cannot make any generalisations on this.
It is something though that needs to be looked at but even before you get to that stage, I mean that is an employment lawyers first answer, the payroll and general counsel would be saying, okay two things; What about their remuneration? What payroll deductions should we be making for somebody who is working in another country? Do we have to make social security contributions for them? Is that therefore going to be much more expensive to employ them there than it would be than if they were in the UK and also from the business risk perspective, are we establishing a place of business in this new country?
Are they therefore going to be subject to regulation as an entity of ours there and taxed as such? So all that needs to be worked through. It is not just as easy as having a reliable internet connection. And then if you are in a regulated industry, you start to have to look at issues such as, well is the place that you are working, secure And that does become an issue in countries where the state can start prying around in your inbox much more easily than they can here.
It is problematic, there is no question. It sounds like we were released into a wonderful new world of possibilities where I can achieve my chargeable hours sitting in Timbuktu - not necessarily.
Michael: We have now had, well dare I say, a year of this. This has been a yearlong experiment in working from home/remote working. In your view, how is it all going in employment terms?
Jonathan: I think surprisingly well, I might put it that way. I mean, bearing in mind that this was a revolution in the industrial world and it has actually been surprisingly smooth, from the employment law perspective. I do not want for a moment to minimise the impact that it has had on individuals, not all of it good, or indeed organisations. But looking at it from the narrow professional perspective, we have not had that many problems thrown up at the moment but as I trailed at the beginning of this, I think there is one which is ticking and waiting to go off.
And that is, the way that the camera allows the employer access to areas of the employee's life that they have never had previously. In some ways, this way of working has brought opportunity. If I can give you an example from my perspective. We have, in law firms, the seat system and people rotate through the departments. Because we do not have the opportunity for informal interaction with the trainees who are coming through, you do not just pick stuff up at the water cooler or at the kitchen or the workstation, then to try and overcome that I have had a kick-off coffee with each of the trainees individually. Now, I would not have done that in the office and I would not have done that because it probably was not necessary and also because, as a male manager, I have to think quite carefully about positioning a one-to-one meeting with a junior woman. It is not to say you cannot do it, but you just have to think carefully and is it really worth the effort, no probably not, you know and all the rest of it.
But now I can have a chat, it is fine because it is perfectly safe. They are in a home environment and it is easy except, except that actually that one-on-one can be taking place in their home, and the drawbridge is down. There is no barrier anymore between home and work. That sense of a place which was safe and separate, has gone. I am doing a call with someone in their bedroom. I noticed a teddy bear and I start making a comment 'you do not still have one of those do you?' Or a book that they have got on their shelves, or some items of clothing that is hanging up. and here you run into the problem that things that you would never say face-to-face, because you are protected by the barrier of the glass on the screen, you forget that the communication is still there and intimate. It is like when we are behind the wheel of the car. I mean, I have said things to other drivers, protected as I am by my screen that I would never say to a pedestrian as I am walking down the street and so people can be less guarded on the camera believe it or not.
And then, that can sound much worse for the employee because of the impact on them. That is their bedroom, and I have been in their bedroom, and that safe space where work did not come, has gone. I suspect that there is a lot of clumsiness, possibly some intentional harassment that has been building up out there and we are not going to see the effect of that until we start to say to people, 'right we want you back in the office'. And people start making all sorts of excuses not to come back into the office because they do not want to be in the same room as the person who has already been in their room and abused the privilege and my crystal ball says we are going to have those problems.
So if you get, particularly women employees, who are reluctant to come back in, there needs to be a little sensitivity around that. 'They are too young to have childcare responsibilities what is their point?' There might be something else to it. We need to watch out for that.
Michael: Okay, so watch this space. We have got eight questions. And we have only got, probably just over ten minutes. If I may Jonathan, I am going to skip to the audience questions now, in no particular order.
As most lateral flow tests are operated, the results are getting sent off to a central government website and coming out from that way. In that sense, just asking for confirmation, are we relying on employees to be honest about their results and then being expected to treat what they communicate to us in the same way as we would any other sensitive medical data? That might be a GDPR question.
Jonathan: Yes. And it is a GDPR question and it is the thing that I am worried about. Because the employer will get the data from somewhere, whether there is an in-house testing facility on site or whether it comes back from the government, and then what do they do with that data once it is in there?
If one of the reasons that you are saying, we want to people to have a lateral flow test so that colleagues can be comfortable that everyone is safe, well what then happens, who needs to know, that an employee has not had the test?
What do you do with that information when you have it? There are really tricky data protection issues around that because, is making colleagues feel better a reason for passing on highly sensitive information and to what level do you do it in the company? How do you handle it? So that is why when I answered the question I said, there are all sorts of tricky GDPR data protection issues around this and why I really hoped I was not going to have to get into that level of detail. You have got to ask yourself those questions. Why are we doing this? What are we doing with this data? How are we making sure it is safe? Who has got access to it? Why are they using it? And yes, the fundamental point being, that actually in many cases you are relying on the employee, so how valuable is the data anyway? I mean, those are all things you have to take into account.
Michael: In the asker's organisation they are asking their employees whether they have been vaccinated or not and whether they are concerned about their health before they come into the office, so that they can then take the appropriate and sounds to me, slightly personalised steps around they are treated when they come into the office. Is that a sensible approach of engaging with individual employees about how they feel about stuff?
Jonathan: I hate answering any questions with the words 'it depends' because as we know, we are all lawyers. All lawyers can answer any question with the words 'it depends' and, forgive me if you heard me say this before, we have to be very careful as a habit. 'Darling, does my bum look big in this?' You know, you can get into all sorts of trouble answering things with 'it depends' but I cannot avoid it in this one. I mean it is so context specific.
Are you an organisation where, actually requiring people to be vaccinated is a reasonable requirement? Healthcare. Essential requirement: social care. Are you dealing with members of the public in very close proximity? Transport. Travel. The entertainment industry and then where does that extend to? Retailing? Size of premises in the shop? It is such a fact specific issue.
At the moment, as I was saying when I was answering the question about Charlie Mullins, outside health and social care, I would be very wary as an employer of imposing any sort of requirements or having any sort of dialogue around vaccines because it is going to be really hard to establish that that is a necessary thing to do. I can see that cascading through sectors in the economy and I can see it becoming a much more common question once we have completed the vaccine rollout. But not yet.
Michael: Okay. We have got a few questions. Three questions which I will try and put together because of time, on tourism and travel actually. Actually, given what you have just said, you said health and care. Maybe is tourism one of those sectors where mandatory vaccinations might be better suited? That is one question.
Second question is, how might work travel be affected? Can employees decline to travel because of their concerns about the risks of going abroad to particular questions? And then, how do mandatory quarantine periods affect employees if you have to go away to somewhere and then have to quarantine when you return. Are there any impacts falling out of that?
Jonathan: Well let me deal with that last one first because I think the answer is, if your employer has asked you to go abroad and you then come back and you cannot work, as a result of requirements which have changed. Your employer having required you to go, then it will be a bold employer who is then going to, for example, dock your pay or penalise you for being absent in any way. I think the employer probably, in those circumstances, just has to suck it up and keep paying whilst you are in quarantine. It might be different for particular consultancy arrangements for example, that would be my starting point on something like that.
As to tourism and travel generally. Yes, I do think that the case for compulsory vaccination will be easier to make further down the line in those sectors because of the close proximity to members of the public who are themselves in close proximity to one another. I can see that happening. In order to fill the planes up.
As to travel to and from work. This was a question which came up quite a lot in the first lockdown. Can we require people to come back to work because, of course, we are under a duty as employers - absolute duty to provide a safe system of work. And there was quite a lot of thinking, which was kicking around a year ago that that extended to travel to work, in the sense that there was a specific section in the employment legislation where employees can refuse to come to work if they believe their health and safety is in danger, and that would include if my travel to work exposes me, then it is not reasonable of you to require me to come into work.
I think that still remains the case, actually! The law has not changed. The problem still remains the same. What has changed and what will change, through the vaccination programme is whether that perception by employees is reasonable or not. Because the more of us are vaccinated, the more the R number drops and the risk of any form of travel, even the Tube which must be some sort of device for the maximum effect spreading of viruses, is up and running again. It will still be relatively safe if people are all wearing masks and most of us have been vaccinated, then it will not be unreasonable for an employer to say, no you are fine. One would hope at the relevant time that will be backed up by authoritative scientifically based, risk assessments on the various forms of travel and transport that exist. Partly because there is a question of social acceptance - I do not see us all getting back on the Tube, unless we have to, until we know that it is safe to do so.
Michael: Thank you. I think we are up against the clock now, so just to say we have got a few questions which we have still got open and have not answered. What we will do with those, with the blessing of those who have asked them I hope, is that we will give them a written answers.
It just falls to me to do two things. One is just to thank Jonathan. I am hoping that perhaps at some stage I might see him back in the office, in person! Although I will, if I am not intruding on your privacy Jonathan, I will miss that painting. I very much enjoyed looking at that painting for many meetings we have had over the lockdown period.
Just to say, a big thank you to all of you for joining the webinar. We know you make choices around how you spend your time, so it is a real privilege for us that you choose to share your time with us, so a big thank you from me and Jonathan and just to share that we have got our second webinar series coming up on this Thursday, on 10:30, which for those of you who did raise questions about GDPR, is about data sharing, so do join us for that at 10:30 this Thursday and I hope you enjoy the rest of your day! Thank you very much.
Read the original article on GowlingWLG.com
Originally Published by Gowling, March 2021
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