Recently I have been commenting about the rising conflict that I am seeing in the workplace. This is unsurprising given some of the tensions that are around managing COVID-19 and the lessening of restrictions – the burden is being placed on employers to resolve the clashes that might emerge. If you haven’t already thought about these things, these are some of the issues that are arising:
- The clinically extremely vulnerable
The Government updated its advice to those who are clinically extremely vulnerable on 19 July 2021. If you recall, shielding advice was paused on 1 April 2021 but many in this category will have been protected by the instruction to largely work from home until now. Now advice is to continue with social distancing and suggests other precautions they might take, such as, only meeting others in well ventilated places, limiting contact to those who have been vaccinated, taking lateral flow tests before meetings and continuing social distancing.
When it comes to work, the guidance is that it is the employer’s legal responsibility to protect their employees from risks to their health and safety, setting out that “your employer should be able to explain to you the measures that they have in place to keep you safe at work”. (So no different to any employee then…).
It then cross-refers to the HSE Guidance on Protecting Vulnerable Workers which includes older males, those with a high body mass index, those with health conditions such as diabetes and those from Black, Asian or Minority Ethnicity backgrounds. They encourage employers to continue to use the furlough scheme if an employee can’t work from home. They go on to explain how you can support workers working from home.
It is interesting that the guidance tells employees specifically that if they have got concerns about their health and safety at work that they can raise them with their union, the HSE or the local authority. Rather unhelpfully, it doesn’t encourage the employee to raise concerns with their employer first before contacting their union or HSE… I am definitely seeing an increase in employees referring things to the HSE anyway.
In Wales, the guidance remains that if somebody is clinically extremely vulnerable then they should continue to work from home if possible but that they can return to work if the workplace is COVID secure. In particular, the employer is advised to talk to the employee as soon as possible about how they are being kept safe, they should put in place 2 metre distances between colleagues, they need a risk assessment, taking into account the individual’s risk factors. The guidance again encourages the use of the furlough scheme.
With the lifting of restrictions in England in particular, there is a cohort of those who are vulnerable or live with someone who is very worried about the measures that are currently in place, who may well be suffering with heightened anxiety in relation to these developments. There is the potential for this issue to clash with others in the workplace, who have less understanding or empathy and for differences to emerge.
It is important to remember that those who are clinically extremely vulnerable are likely to be disabled for the purposes of the Equality Act 2010 and the duty to make reasonable adjustments will apply. It is worth noting that the Access to Work Scheme was updated last year so that if there are employees with a physical or mental health condition who need to work from home as a result of the pandemic, support can be accessed, for example, to buy equipment, pay for extra travel costs if they are unable to use public transport safely, or for protective equipment. There is a 9 month period within which to make a claim for such costs.
- Vaccination status
There is a potential for conflict to arise between those who have received the vaccine or believe in the importance of the vaccine and those who don’t or those who have been vaccinated and may now feel invincible and those waiting to get to that place. This could lead to dealing with grievances with employees who do not wish to be vaccinated who feel classed as discriminated against if the employer puts in place guidelines in relation to vaccination. It is worth noting that on 13 July 2021, the Government published a raft of information for employers expecting them to encourage people who haven’t been vaccinated to do so, suggesting how they might do that. Surveys have consistently shown that large numbers of employees are uncomfortable having to work with those who haven’t been vaccinated. You can see the tension that lies ahead. Things may also get worse if people have strong feelings on a subject and vociferously share their views. Employees also pick up these things by seeing each other’s Facebook posts and Tweets.
- Pregnant workers
There is a myth circulating that somebody who is pregnant cannot be vaccinated. If you look at the UK Public Health Guidance on this, including evidence in the Lancet, the Guidance is actually that pregnant workers should still be vaccinated. Initially, previous Government advice was that pregnant shouldn’t be vaccinated but this was updated on 16 April 2021.
Employers have special obligations as soon as they know that a worker is pregnant, to undertake risk assessments in respect of that person anyway. Of course, this is heightened due to the pandemic. Again, there may be a cohort of workers who have heightened anxiety and are less tolerant of what they may see as unsafe actions of colleagues.
An employer has the legal obligation under the Management of Health and Safety at Work Regulations 1999 to alter a pregnant employees working conditions or hours to avoid any significant risk. Where it is not possible to do that or where alterations to conditions or hours wouldn’t avoid the risk, the employer is expected to offer suitable alternative work on terms that are no less favourable and if that isn’t possible, then there is a legal obligation under Section 16(3) of those Regulations and Section 67 of the Employment Rights Act to suspend the employee on full pay. Guidance from the Royal College of Obstetricians and Gynaecologists and the Royal College of Midwives in conjunction with the Government and the HSE was last updated on 21 June 2021 and reiterates the importance of risk assessments and provide a number of recommendations including – “we advise all employers to be cognisant of that Guidance and apply it”.
As pregnant women are identified as clinically vulnerable in the Social Distancing Guidance, where the nature of their role means they can’t work from home and there isn’t any suitable alternative work that they could do from home, the employer should be suspending that employee on full pay, if workplace risks can’t be sufficiently mitigated. The Commission for Equality and Human Rights Guidance also suggests that requiring pregnant employees to continue to work in frontline roles could amount to indirect discrimination because of sex.
- Those who are suffering from anxiety
These are people who are experiencing higher levels of anxiety than they would have pre-pandemic. In particular, those who have led a more sheltered life for the last year and a half and even the most simple things we have got out of the habit of doing become more stressful. We need to be more gentle with those who are being asked to return to the workplace who haven’t been there for a long time. You must remember that there are those who have lost loved ones or friends to COVID and tolerance levels of the way in which other people behave or are perceived to behave in relation to, for example, wearing masks and social distancing can become a cause of tension or conflict.
In some cases that “normal” anxiety can actually become something more and if the employee has a diagnosed medical condition or something that hasn’t yet been diagnosed and it is severely limiting their ability to do normal day to day things, we are moving into disability territory again, meaning your requirement to make reasonable adjustments kicks in. You need to get medical advice. I am constantly seeing cases where an employee tells their employer something like “I’m anxious” and then criticises them for not taking steps to tackle that issue. I sometimes see a myth amongst line managers that an employee needs to ask for reasonable adjustments – that isn’t the case, the duty is on the employer irrespective of whether the employee is suggesting an adjustment or not.
- Tension between different groups
The latest announcement that some workers who have been pinged by the NHS App and are otherwise isolating for 10 days but can go to work in social care and healthcare settings is only going to make this worse. If I was a colleague I wouldn’t want to be working with that person…
- Holidays
With the UK Government officially giving the green light to international travel in May 2021 and with the traffic light system reflecting COVID risks in different countries, staff will undoubtedly have strong opinions on colleagues who are visiting amber list countries (and red list countries where they have an essential reason such as a family bereavement). Colleagues won’t necessarily know the vaccination status of a colleague or whether or not they should be isolating. Countries are also moving between where they are on the list such as Portugal which moved from Green to Amber. The rules are quite different in Wales, Northern Ireland and Scotland and with a nuance there is undoubtedly room for friction. It is very difficult for an employer to forbid an employee to leave the country in their own time, to visit locations that the Government is permitting them to. We don’t even have the right to require the employee to tell us where they are going. We suggest that this is laid down in policy documents. For example, you may state that leave requested for international travel will not be accepted and may be cancelled if discovered at a later date and explain why these rules are put in place. Employees need to understand clearly what the position is if they are quarantining without symptoms (they won’t get SSP and unless they are able to work from home, they will not be paid).
If there was a theme in all the different grievances I have on my desk at the moment, one thread would be that it probably became apparent early on that there was conflict and tension between different employees, and the matter has been ignored or not given the attention that could have prevented it getting worse.
Everybody has been doing everything on Zoom and Teams and we are facing a reluctance to talk now to anybody properly about anything – the most important tool that can be deployed to prevent grievances escalating is a good old fashioned conversation. A conversation that involves listening to everybody’s perspective. There is huge value in people feeling listened to and heard – you can signal that to somebody by playing back to them what it is you have taken from what they have just said, using their own words, acknowledging if they have expressed how they feel about it.
A powerful question that can be asked in those scenarios is “how would you like us to resolve this?”. That puts the onus onto the individual concerned to come up with a solution and not just be having a whinge about something. Quite often when you ask people this question, they are sensible in what they say, perhaps it’s an apology that they were looking for or perhaps it’s an acknowledgement of what they have been through or feel.
Because the potential costs in terms of time and energy converted into dealing with grievances is so huge, before you even think about asking for legal advice, we really do need to be investing in the skills that managers need in order to have these conversations.
Details of training packages that we offer in this regard are available on request. Please email: adenton@refreshinglawltd.co.uk for more information.
Anna Denton-Jones
Refreshing Law
