The new financial year is in full swing and with the anticipation of people returning back to work, there’s a lot of uncertainty on whether or not employees should adapt or completely update their employment contracts to adhere to a new working world.
With vaccination programs commencing worldwide, ‘no jab no job’ appears to be a buzz term that’s raised many questions and many more eyebrows.
This article looks into why you might need to update your employment contracts, and if certain adaptations are right for your business.
Vaccination is (usually) a private matter
Pimlico Plumbers made headlines in January by announcing that it would require all employees to be vaccinated. While each situation has to be examined on its own merits, ’no jab no job’ policies could lead to a host of legal issues.
In simple terms, the only time an employer might have a case for insisting on vaccinations would be if staff had direct contact with the clinically vulnerable. Even here, the situation is far from cut-and-dried.
The employer would be obliged to prove both that the action was proportionate to the risk and that there was no other practical way to mitigate the risk. This is a very high bar to jump. If the employer fails to clear it then they could run afoul of both Employment Tribunals and the Equality Act.
In fact, if an employee felt compelled to be vaccinated to keep their job, they may bring a claim against their employer for unlawful injury and/or breach of their human rights. With 69% of surveyed Americans believing the decision to get vaccinated should be a personal one, employers need to proceed with caution to avoid alienating their employees.
Employers may find themselves on very thin ice if they rely on employee consent as a defense. The law recognizes that there’s an imbalance of power between employers and employees. This can lead to questions about the extent to which the employee actually had free will.
Remote working should be handled with care
Working from home was somewhat of a strange concept for those who worked full time within an organization, but if you were self-employed, it probably wasn’t strange at all. Before the pandemic struck, around 7.9% of the world’s workforce already worked from home, but after the first lockdown hit many countries in March 2020 this number increased significantly.
This change has also seen many companies adopt remote working as a permanent part-time or full-time measure. Allowing employees to choose whether they work at home or not and to work around ‘flex’ hours which more and more employers may have to do, a recent survey has shown that 60% of 2,500 Americans believe employers shouldn’t force employees to go back to the workplace before they’re ready.
However, if an employee’s contract says that they must work on-site then, barring emergencies, the employer must either honour this or go through the formal, legal procedure to change the contract.
If, on the other hand, an employee requests to continue to work remotely, then you should only refuse their request if there are reasonable grounds to do so. Post-COVID-19 this could prove challenging. After all, if an employee has been doing their job remotely for the last year, then it could be difficult to argue that their role isn’t suited to remote working.
If you plan to onboard new employees on a remote-first basis, it’s advisable to double-check your contracts to see if they have any implications beyond updating the location. If you plan to onboard new employees on the assumption that they’ll work on-site, remember that they’ll still be able to request remote working, so you need to prepare for this.
Remember your handbook
Employment contracts often include a requirement for employees to adhere to policies set out in the company handbook. This means that handbooks effectively form part of the legal relationship between employer and employee. With employees now starting to return to work in greater numbers, it could be a good idea to review your current handbook to see if it also needs to be updated.