Who knows what’s on the agenda for HR in 2021….but less of the C word and the F word would be good!
December has always been the time of year when I deliver an update session to clients and contacts, usually imaginatively titled “Employment Law Review of the Year”. It goes down well. It provides a chance to network over a mince pie and glass of mulled wine (what I wouldn’t give to go to an in-person event with bad coffee and stale pastries), as well as being a time for HR professionals to consider the impact of case law developments in practical terms and to look at “what’s in the pipeline”. Delegates leave with a list of things that they want to action, adding to their agenda for the coming year.
It turns out that last year’s “what’s in the pipeline” session was a complete waste of time. There was no mention of the most searched term of 2020, the c word. And not even a hint about furlough or the acronym appropriate flexible furlough scheme that followed. So is it even worth considering what is on the agenda for HR in 2021? Maybe not, but I’m going to brave it and highlight what I think might be up there:
- Less flexible working, more flexibility
The notion of flexible working has taken on an entirely new dynamic this year. People who never thought of themselves as requiring flexible working have been at home 24/7, juggling work with various home responsibilities. And employers resistant to flexible working have demanded more flexibility from staff than ever before.
As we head into 2021, employers therefore need to identify what they expect from employees in terms of workplace attendance and hours of work and how they intend to measure input and output in the new working world. For this to be successful, communication will be key. In my experience, legal risk invariably arises not from the decisions that are made, but from the way in which decisions are communicated.
And whilst we will see a continued requirement for more flexibility from both employees and employers, I do not envisage an increase in flexible working requests under the statutory Employment Rights Act 1996 and the Flexible Working Regulations 2014. After all, the legislation only provides the right to request flexible working and arguably produces an inflexible result, given that the right is generally viewed as the right to request a permanent change to terms and conditions.
- A new trend in grievances
With so many of the workforce not physically at work, this year has seen a shift in terms of the nature of employee grievances. Employee A is less concerned about the fact that Employee B’s desk is in a better place than his. Employee A is far more aggrieved about the fact that he was placed on furlough / was not placed on furlough / was brought back into the office / was not able to come into the office…
The potential risk areas arising in grievance disputes are changing. In my years of practising I have never advised on a grievance or claim under section 100(1)(d) of the Employment Rights Act 1996, for example. However, where an employee reasonably believes that they are in serious and imminent danger….they are protected from dismissal if they leave, propose to leave, or refuse to return to the workplace while the danger persists. I have no doubt section 100(1)(d) arguments and the like will become much more prevalent and HR professionals should ensure that they are alert to these.
- Patience and co-operation
For those facing and/or dealing with Tribunal claims, 2021 will require continued patience and co-operation. The backlog in Tribunal claims continues to rise. In England, Wales and Scotland there were approximately 10,000 single cases awaiting determination in March 2017. This figure had risen to 27,000 in March 2019. For the week ending 29 November 2020, the figure reached over 43,000. The Senior President has stated that there are “systematic problems faced by the Employment Tribunals”. Claims are not going to be heard quickly. Workplace disputes could run for many months, if not years.
It is not for Tribunal users to fix the problems. But decisions (whether strategic or otherwise) made by parties during the course of Tribunal proceedings should to be taken with the wider context in mind. The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 expressly provide that “the parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal”. Never has this been more important. HR professionals (and critically, their lawyers) have to play their part in ensuring that they are not contributing to the backlog.
- And finally…
And finally, there are several other legal changes ahead about which employers should be aware.
Employers need to ensure that they haven’t overlooked the changes that came into force in April this year in relation to the provision of written particulars of employment under section 1 of the Employment Rights Act 1996.
Annual changes will be made on 4 April 2021 to the rates of statutory sick pay, statutory maternity pay etc. The annual Gender Pay Gap reporting requirement on 6 April 2021 will need to be complied with. And we will see the introduction of the IR35 changes with effect from 6 April 2021.
So, can I predict the future? Do I know exactly what challenges lie ahead? No. But I do know that HR professionals are a resilient, creative, forward-thinking, hard-working bunch and that whatever 2021 has in store, they will embrace it head on.