The COVID-19 crisis has shown employers just how much can change in a short space of time.

On 11 March 2020, the World Health Organisation declared COVID-19 a pandemic. Five days later, Boris Johnson addressed the nation to ask people to work from home if they could. On 23 March, the country entered its first of three national lockdowns, with people instructed to stay home.

The rise of the makeshift home office

Since then, everything from dining rooms to bedside tables have transformed into makeshift workstations. The Office for National Statistics reveals that, of the 46.6% of employed people who worked from home in April 2020, more than four-fifths (86%) did so because of the pandemic, with Londoners the most likely to have worked from home.

78%

said remote working practices adopted during lockdown are likely to continue for the foreseeable future.

Those improvised offices could be here to stay. In a survey carried out in January 2021 by Opinium in partnership with Bird & Bird, 78% said remote working practices adopted during lockdown are likely to continue for the foreseeable future.

However, 46% said increased remote working had negatively impacted their business, plus 50% said less face-to-face contact had worsened their board’s performance.

Workplaces which remained open during the lockdown have battled with infection control meaning health may be a deciding factor to continue working from home. Public Health England data, which the BBC obtained under a freedom of information request, revealed that more than 60 suspected COVID-19 outbreaks occurred in offices during the first two weeks of the third national lockdown.

Employee preference could be another consideration

A YouGov poll of almost 5,000 adults, published in September 2020, found that more than half of workers wanted to work from home all or some of the time once the COVID-19 crisis ends, increasing to two-thirds among Londoners.

Emily Clark, an associate in Bird & Bird’s International HR Services group, says this preference could prove important for attracting and retaining talent. “Organisations will need to really think carefully about what flexible working arrangements they offer in the longer term, balancing the needs of the business with employee expectations as well as wider market practice and what their competitors may be offering,” she says.

With London’s office space among the world’s most expensive according to Statista, Clark points out that remote working also means “you may no longer need to have a desk for every single person in a big building in an expensive location”.

However, Clark also notes that the difficulties of operating a business during a pandemic, rather than remote working itself, may be behind employers’ negative sentiment, adding it’s not “typical remote working… it’s under extreme pressure”.

Robust remote working policies are key

Employers have some legal questions about remote working. Almost three-quarters (73%) of respondents in Bird & Bird’s survey in partnership with Opinium said their business needs a better understanding of how employment law applies to remote working.

Clark explains employment laws continue to apply to remote workers in the same way as they do office workers, but overseeing obligations becomes trickier. “Employers have a duty of care for employees’ health and safety and to ensure, so far as reasonably practicable, a safe place of work,” she says. “That’s easier if they’re in charge of the building that you work in.

Robust policies are key and Clark says “employers should check their remote working and other relevant policies, making sure the expectations and responsibilities are clear”. She adds employers would be wise to review anything which was put in place at the start of the pandemic, when “there was a shift to remote working at very short notice and employers had to scramble to get the best systems in place they could”.

Clark notes areas to be wary of in a remote working context include health and safety and employee wellbeing, identifying and managing issues such as workplace harassment, safeguarding confidential information, working time, employee monitoring and the related data protection issues.

A new working world requires new management skills

The results from Bird & Bird’s survey showed that almost three-quarters (73%) said increased levels of remote working had highlighted the need for different management and pastoral skills. Four in five (81%) of those who have noticed this increased need are planning for these provisions to stay in place after the pandemic is over.

Remote working has made managing employee wellbeing particularly complicated. In a survey of almost 6,000 people across the UK and Europe by AXA Health, published in November 2020, 64% of those in work said their work-related stress levels had increased compared to pre-pandemic.

“The danger in a remote environment is that people slip through the net and no one’s checking in on them in the way you would when you are physically seeing people in the office,” says Tim Spillane, a partner in Bird & Bird’s International HR Services group.

Rachel Suff, senior employee relations adviser at the Chartered Institute of Personnel and Development (CIPD), says “remote working can make it harder to spot people who are overwhelmed or stressed, or not in a good place with their mental wellbeing”. She adds, “managers often find those conversations and picking up on those signs very challenging anyway, so they need to be trained and have the emotional intelligence to pick up on people who might not be feeling very good mentally.

Suff shares that managers at the CIPD have made an effort to have regular catch-up calls with staff, where the first question is always “how are you”.

Gillian Pillans, research director at the Corporate Research Forum, agrees that managers have had to become more proactive about staff wellbeing, saying behaviours to focus on include “increasing the frequency of check-ins, working out how to use technology better to connect with people, paying attention to warning signs of burnout… [and] being much more flexible”.

Edoardo Monopoli, CEO at Bird & Bird’s consultancy arm OXYGY, adds “developing a compassionate and empathic leadership style, instilling a sense of purpose, keeping a transparent and timely communication as well as structuring work around objectives rather than tasks will be crucial in the new normal.

Businesses and managers are rising to the challenge, however. Pillans says CRF hears from members that have invested in digital learning for management skills. “There was a real rush this time last year to increase the availability of online learning and support for managers,” she adds.

A little window into people’s lives

Alongside the need to invest in management skills, Bird & Bird’s survey found three-fifths of senior decision-makers were now investing more in their corporate culture compared to 12 months ago.

Professor Costas Markides, author of The New Normal, a lecturer at the London Business School’s ‘exploiting disruption in a digital world’ and senior executive programmes, says many of the “rituals” which pull colleagues together, such as grabbing a coffee, have “gone missing now because of the pandemic but you can try to recreate it as much as you can in [a] virtual setting”.

Spillane agrees, “businesses are now asking how to foster team bonding, strong ethics and the kind of creativity and positive energy that comes from physical proximity”.

But pandemic working can bring unexpected benefits. “You’re in a Zoom call with your colleague, their kids show up, the baby’s in the picture, you can see their room, it’s totally messy. You relate with them, not as a colleague, but as a fellow human being,” says Professor Markides, adding: “I think that has helped empathy, that has helped with the feeling that we are all in this together.

Suff adds that seeing people’s homes on video calls “naturally invites a personal conversation – it’s a little window into people’s lives and that can be a leveller”.

A different kind of workforce

Although the Office for National Statistics figures show an estimated 1.72 million people were unemployed in the three months to November 2020, business leaders are optimistic about their ability to hire. According to Bird & Bird’s survey, 57% are recruiting as normal or at increased levels, rising to 63% for businesses with 250 or more employees.

But, in lockdown, interviewing in a conference room isn’t an option. “Whilst organisations that have a large global presence may have been recruiting and interviewing remotely for some time, the rest of organisations have traditionally interviewed and recruited solely face-to-face,” says Gaelle Blake, head of permanent appointments at recruitment company Hays UK & Ireland. “Before lockdown happened, less than 10% of our interviews took place using video conferencing, whereas this is now at over 90%.

Bird & Bird’s survey also found more than half of senior decision-makers plan to hire a greater number of staff on flexible employment contracts in the future, while 40% plan to hire a greater number on zero-hours contracts.

One potential issue with flexible workers is legal status.

“Even if an employer didn’t intend [new workers] to be employees, there’s always a risk that, actually these people would be classified as employees rather than another type of worker. Employers could find themselves in a position where unintentionally people have legal rights as employees, such as maternity pay, entitlements to family leave pay, sick pay, right to claim unfair dismissal and so on,”

Tim Spillane, Partner at Bird & Bird

Legal protections for certain types of flexible workers, such as regulations preventing employers from treating part-time workers less favourably than their full-time counterparts, exist too. “If you start having a more layered workforce and moving away from the more common permanent five day a week employee to more hybrid models, employers need to be aware of existing legal protections for people who aren’t classic employees,” Spillane says.

Clark predicts some employers may consider recruiting from a wider, perhaps even global, talent pool if they reduce their physical presence, but warns this requires careful consideration of compliance with immigration, local employment and tax rules.

Monopoli agrees and notes that the pandemic has changed the competencies businesses look for in workers as well: “The ability to defend your boundaries, keep a work/life balance, be aware of negative emotions, share information and motivate yourself are all qualities workers have had to develop during the crisis, and are also highly sought after amongst employers”.

A shot in the arm

Hope is on the horizon for the end of the pandemic by way of the vaccination programme. The NHS started rolling out vaccines in December 2020. By the end of February 2021, more than 17 million people will have received their first dose.

Bird & Bird’s survey found three-quarters of senior decision makers at medium and large businesses would purchase a COVID-19 vaccine privately for staff if it became an option.

Spillane sees little legal problem with employers providing the vaccine as a purely voluntary perk, similarly to a yearly flu jab programme. However, if employers made the vaccine compulsory “if someone refused to take it, it could well become an issue. Is that employee refusing a reasonable instruction and, on the flip side, is an employer potentially discriminating against employees if it takes some action over refusal?”.

A survey by market research group Kantar of 1,000 adults in Great Britain in November 2020, ran before the UK approved any vaccines, found just 8% would definitely not take the vaccine, while 11% would probably not.

Spillane says while certain protected characteristics in discrimination law, such as religion or belief, may arguably be linked to refusing a vaccine, workplace vaccine policies may be justified if they are proportionate and have a legitimate business aim.

However, Spillane adds employers should be wary of employees’ health and other concerns when refusing a vaccine. For example, pregnant women are currently advised to decline the COVID-19 vaccine unless also considered at high risk from the disease. “If there was a credible, medical health reason why someone was declining the vaccine, any employer would be well advised to take that into account,” he says.

Bird & Bird’s survey shows that while 44% of those at medium and large businesses said they would make the vaccine available to all roles, 31% said they would make it available for specific roles only. Clark warns care would be needed not to unintentionally discriminate against a certain group if only offering the jab to certain roles, for example, teams where the workforce is predominantly male.

However, Clark adds such distinctions are possible “if there’s a legitimate objective justification for why a group needs to be treated differently, particularly if it’s on health and safety grounds”.

Employers would also need to be careful in storing information on staff vaccines and Spillane points out vaccine data may be treated as special category data for data privacy purposes.

A real eye opener

The pandemic has served London’s employers a challenge. How will they cope with a future where homeworking is the norm, where fewer staff are clocking in the traditional nine to five and where tea breaks take place not in the office kitchen but over Zoom?

Pillans remarks: “Companies have actually managed really rather well, much better than you might have expected had you been asked this time last year to predict what will happen when the whole world starts working remotely overnight.

Spillane adds: “One of the real eye-openers of the whole pandemic period has been how well so many organisations have adapted. Now it’s a case of making sure businesses are aware of what the new normal holds in terms of employment law and making sure they are prepared for it”.

External contributors:

Professor Costas Markides, Author of The New Normal and lecturer at the London Business School

Edoardo Monopoli, CEO at Bird & Bird’s consultancy arm, OXYGY

Gillian Pillans, Research director at the Corporate Research Forum

Rachel Suff, Senior employee relations adviser at the Chartered Institute of Personnel and Development

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