The speed of change in employment law and its real-life impact have never been more apparent than over the last few years, where it has been forced to respond to a global pandemic and in so doing, has radically changed the world in which we work.
The first major shift has been hybrid working. The concept has developed various personas and covers working with a “martini mindset” to “office first” models, and everything in between. The pros and cons of each are presently of little consequence for the simple fact that giving employees the working model they want has become one of the best weapons employers have in the current talent retention war. For now, employers will need to continue to grapple with the employment law challenges this creates – flexible working requests, continuous review of policies, management of discrimination risks, health and safety considerations, data protection etc. As is normally the case in employment law there will undoubtedly be further change to come in this area. Specifically, with businesses placing considerable focus on their ‘green’ credentials of late, it is only a matter of time before the two trends collide and climate considerations creep into flexible working discussions. Legislative change may come when we hear the long-awaited outcome of the Government’s consultation on “Making Flexible Working the Default”. Recent research highlighted that three-quarters of UK recruiters say a four-day week will be the norm by 2030. Hybrid working will be stretched to its limits if we are all working in Mark Zuckerberg’s metaverse ten years from now.
Another employment law consequence of the pandemic has been a renewed focus on the health and wellbeing of employees. Lost working days, costs of sick leave, high turnover and potential for claims means employers are being forced to do more to support their staff in this regard. Here, the law gallops on too – this summer alone we have seen significant expansion in the categories of healthcare professionals who can certify absence; a Scottish Employment Tribunal decision that an employee suffering from symptoms of long-COVID was disabled for the purposes of the Equality Act 2010; and calls for maximum workplace temperatures to be enshrined in law. This area is attracting political investment and support also, most recently seen in the launch of the new Scottish Government platform “Supporting a mentally healthy workplace” which offers free brings advice and assistance to employers and employees.
All of these issues are evolving against a backdrop of a vulnerable economic climate and labour market. Many employees faced with the soaring cost of living and an appetite for better work/life balance either join the so-called ‘Great Resignation’ or if they are in a unionised industry, partake in the unprecedented spike in industrial action. The result of which adds to skills shortages in key sectors, a fierce talent war, and employers bullishly enforcing post-termination restrictions and confidentiality provisions to protect their business interests. Is this bubble about to burst? Without a contractual requirement to do so, there is currently no legal obligation on employers to increase salaries to reflect rising inflation – but should there be, or would this only serve to exacerbate the problem?
Employment law is facing a number of uncertainties, with the only constant being its rapid evolution. Adaptability is crucial for all employers as well as monitoring change to ensure we all keep up with the new normal.
*This article originally featured in The Scotsman on 29 August 2022