Alison Woods, Partner (Employment), CMS
It is no longer news to report that the world of work is likely to be changed forever as a result of the pandemic. From the initial shock and adjustment to a new working mode, attention is now turning to the extent and nature of that change, and the consequences for workplace related policy and legal frameworks of a permanent change to working conditions and expectations.
“Intelligence is the ability to adapt to change.”
– Stephen Hawking
The ‘new normal’ is a phrase that has been coined many times since the start of the pandemic but in reality the lasting impact of 2020 may be to create working lives where there is no single solution or norm. In a matter of a couple of weeks we went from a pattern of work still largely based on “working 9 to 5” in an office environment, mostly in the CBD of major cities, to many of us having to suddenly fit work around our domestic and parental duties at home in the suburbs on a 24/7 basis. The complexity of the situation we are likely to continue finding ourselves in, notwithstanding the news of effective vaccines, will see a need to be able to find ways to thrive in ongoing uncertainty. This is a post-VUCA reality, where adaptive leadership skills will be needed so as to accept the absence of simple or permanent solutions to the challenges ahead. It is also a time when we need to reconsider what it means to ‘go to work’, and how we can best organise and regulate the relationship between home, work, family, employees and employers into the future.
A new concept of flexible work
For many years there has been a focus for workplaces of creating community; breaking down barriers (literally) in ensuring open plan had become the norm. Some employers even allowed workers – mainly young mothers, it has to be said – to work “flexibly”, often on a 4 day a week basis. In hindsight, these ‘social experiments’ with workplace arrangements seem rather unambitious and tantamount to tinkering at the edges, rather than real reform. But until the reality of 2020 hit, to have suggested that entire workplaces could be transported home, and remain effective, would have been met with healthy scepticism.
The difference during the pandemic is that there has been an understanding and consistency created in all employees, and all employers, being faced with the same extreme situation. Had it been that an individual employer wanted to attempt this move voluntarily in any other time, while their cohorts or competitors did not, it may very well have failed. Then there has been the impact of necessity – with no alternative, employers had to accept the reality of what faced them including (in some cases more quickly than others) ensuring that necessary equipment was provided at short notice.
The end of the office?
This may be the beginning of the end for the office, at least for the office as we have known it. Employers are looking closely at their office accommodation costs, as leases come up for renewal, realising that they can save a substantial part of their budget by reducing their office floor space. Surely a solution that would drive down employer costs while simultaneously driving up work-life balance would be an irresistible path post-pandemic? However, as we have moved from dealing with COVID-19 in crisis mode, to managing this as an ongoing reality, the cracks in this ideology have been revealing themselves.
This is not a question of whether businesses now choose to revert to pre-pandemic ways of working. Many are actively saying they don’t wish to, with well-publicised examples of organisations who were early adopters of permanent home working. Many others accept that agile or home working is here to stay in some form. For it to succeed, and to avoid the cultural and legal fallout that may otherwise sit behind it, employers and individual managers will need to be active in addressing a number of issues. The following is a short list of some of the issues that managers, and workers, need to be aware of, as we settle down into a new hybrid working model.
The potential for new inequalities
The pandemic has been unequal in its impact on workers. The nature of contracts has been at the front of this, with the winning ticket (relatively) being for those in higher paid, permanent and white-collar roles. Gender has also played an important part. To the extent staff have had caring and other domestic responsibilities, the evidence available points towards women having carried a much greater share of these.
A study by the IFS and the UCL Institute of Education1 found that, during lockdown, mothers were materially more likely than fathers to be spending their working hours simultaneously caring for children. This resulted in mothers doing, on average, a third of the uninterrupted paid-work hours of fathers. At the same time, client surveys consistently support the proposition that women were more able to adapt to working remotely, and that men have been much more enthusiastic about the prospect of a return to the office. What will this mean in future about inequalities in the workplace. Will women choose (or have) to be the ones working from home, while men largely choose to return to the office; and what will this mean for the workplace environment and the prospects for advancement of those who stay home? Now is the time to take advice and plan carefully around how these new ways of working should be reflected in how employees are allocated work, rewarded and appraised. Engagement and equality should be front of mind. This could mean having an agreed ‘base’ day, where (in due course) everyone comes to the office so that face to face meetings don’t exclude anyone; or leading from the top with managers – male and female – sharing their stresses and successes in managing remote working.
Grey areas need to be clarified
While we may not realise it, working from home comes with many legal and other implications that need to be addressed by both employers and employees. Laws vary as to the responsibility that employers have for ‘tele-workers’. In large part however, the framework of regulation has understandably been built around the idea that most workers will be at their employer’s workplace most of the time. We have already seen many countries face waves of claims related to casual workers and their rights and status, in circumstances where legal protection has sometimes seemed ill fitted to the reality of the modern workforce. It should come as no surprise if claims from homeworkers are next on the horizon.
Of course, as workplace and employment laws and regulations differ between countries and regions, it is important for everyone to be aware of the rules governing working conditions in their own area and understand how these may be impacted by the change to working from home.
A key issue that employers were faced with at short notice at the start of the pandemic was whether or not they needed to have a work from home (WFH) policy. Such a document could cover the expectations of both sides – such as minimum (and maximum) working hours; provision of office equipment; adherence to company policies on workplace health and safety; and responsibilities of employees to undertake their duties effectively in a timely manner, regardless of location.
Many senior managers had not turned their minds to this issue until this year; it may have been considered a ‘niche’ issue in the company, one that was handled on a case by case, exceptional basis by the HR department. Suddenly when all of the company – including executives and indeed the CEO – found themselves having to work from home, the existence and details of a WFH policy took on a much greater importance and urgency. An employment lawyer can of course help with this, but it is also important that senior management understands the issues and adopts a reasonable approach consistent with the policies. Managers, who themselves are coping with all the
same pressures, will benefit from training and opportunities to discuss challenges, so the policy can be robust – ensuring managers and employees alike can and will engage with it – and that it can adapt as we continue to learn from the evolving experience of home working.
Is my workplace safe?
Employers have a duty of care for ensuring a safe working environment, even where that work is carried out at home. On the other hand, employees need to take responsible precautions while doing their job.
Even before the pandemic struck, many companies already had a checklist to encourage employees to assess their own workspace, ensuring safety and also documenting awareness of risks. Once the bulk of workers were working from home, self-checking became the only practical option. Over the months of the pandemic this highlighted the need to move from emergency response to more long-term set up.
Examples of equipment provided to remote workers during the pandemic have replicated almost all items you would find in an office workstation, including laptops, office chairs with suitable lumbar support, and standing desks. Other companies have encouraged employees to salary sacrifice and purchase what they need for their home workspace. However, this approach requires caution as it may not abrogate the employer’s legal responsibilities to provide a safe working environment.
Safety has also extended to safety of data, and businesses have gone from managing data security principally through controlling the location of data, to needing a developed approach that reflects the reality of having a distributed workforce. This is of course a particular concern where employees are dealing with sensitive customer information and may not have a secure connection to the company’s digital environment.
Mental health has deteriorated
What happens, though, if your employees are just not coping with working from home? Many households have been placed under enormous strain during the pandemic. The lack of personal control has also been felt acutely by many employees, who have had very little option in how and where their time has been spent. Mental health has deteriorated as we have all sacrificed time with friends and family, as well as colleagues. Often, it is reported that work has bled into all the life spaces left vacant. Hopefully this, and the mental health impact, will reduce in a post-pandemic world, but this may still be some time away, and the issue of isolation is not one that will disappear. Employers need to consider how to provide support, both now and in the future.
As part of their duty of care, employers need to ensure there is an ongoing response to this. It is a complex issue, where it is not always clear where the line lies between business and personal responsibility. However, where employees are working and living on their own, employers who have been most successful in maintaining morale have not shied away from keeping an open dialogue with teams about the issues arising. Of course, this has included sharing resources and ideas for coping at home, and a range of online activities that are not directly connected to work. Where possible some have also arranged outdoor meetings, walking partners etc. From discussion with our clients, it is clear that there is no single fix to this issue; communicating well (from the top and at grass roots) and taking small regular steps to connect and support is proving most effective.
Privacy: a new work battleground?
A further consideration which may not immediately occur to employers is the impact on employee privacy, which may well be another potential battleground. We have long since reached the place where the ethical aspects of utilising a particular technology are as important as the practical ones. The ability to effectively manage performance, productivity and attendance across a distributed workforce is almost certainly going to entail some forms of monitoring going forward. However, the ability for employers to do this, and to introduce measures which do not overly intrude into employees’ private lives and circumstances, will depend on individual countries’ privacy laws, as well as workers’ expectations.
This may become one of the most contentious issues to arise out of the switch to home based working post pandemic, given that privacy laws were already becoming increasingly restrictive, just as the technologies for surveillance and monitoring have become ever more sophisticated and accessible.
Alison Woods is an employment partner and co-head of the UK employment team at international law firm CMS, also sitting on the board of its international employment group.
Alison supports a wide range of international clients from sectors including energy, media, technology and consumer products, and has done so for twenty years. Having a particular interest in business transformation, Alison supports organisations through periods of significant change. She is named as a leading individual by Legal 500, and Band One ranked by Chambers and partners, where it is noted “She is commercially focused, with a no-nonsense approach”.