'Living with COVID-19' strategy: advice for employers
Watch our webinar to hear our panel of experts discuss how to take a reasonable approach to these changes while still prioritising employee health and safety
Watch our webinar to hear our panel of experts discuss how to take a reasonable approach to these changes while still prioritising employee health and safety
Watch our webinar to hear our panel of experts discuss how to take a reasonable approach to these changes while still prioritising employee health and safety.
Our panel of experts include:
Chaired by Katie Jacobs, Senior Stakeholder Lead, CIPD
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afternoon everybody i'm going to kick us off um i hope you are all safe and well today
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my name is katie jacobs from cipd and i'm the host for our latest coronavirus
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webinar over the next kind of 45 minutes to an hour we are going to attempt to shed
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some clarity and offer advice to employers on where your responsibility lies now that the english government has
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removed all kovid restrictions as part of its recently announced living with covid strategy
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joining me to discuss this topic and to offer thoughts and advice i'm joined by david de souza membership director of
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the cipd andrew willis who's head of legal advisory at hr inform which is the cipd's employment law resource and
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harvey francis chief people officer at skanska uk thanks everybody for joining
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and before we dive into the topic i just have to go through a few housekeeping notes
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um to let you know the session is being recorded it will be available on demand um it should be available from this
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afternoon or so and you'll also be able to download the slides um you'll be able to find it on the webinar section of the
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cipd website you'll also be able to access all of our previous webinars there as well as find out about any ones
1:16
that are coming up if you want to submit questions to the panel and i'm sure that you do have a
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lot of questions can i ask you to use the q a box please type any questions
1:26
into the q a box do not use the chat box for questions because we won't be monitoring the chat box very closely
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we've also muted all of you because we've got a lot of people on the call today so any questions need to be asked
1:37
via typing into the q a box however if you want to share anything or chat to any fellow attendees then feel
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free to use the chat box for that just remember to set it to everybody so you can share with everyone rather than just
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me or i'm the host of the session do remember that we are updating our faqs and resources all the time and that
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you can find them on the cipd coronavirus hub cipd members can also get individual legal advice via our hr inform helpline
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which is available to you 24 7. we won't be able to get into any highly specific situations here so do remember that you
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can use that helpline if you need any additional advice i also want to flag our wellbeing hub
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and helpline which is available to cipd members in the uk and ireland you can use this to access free help and support
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via telephone or online consultations with qualified therapists that's provided by a health assured
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um i also really just wanted to quickly give some space um to the situation in ukraine i wanted
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to say that our thoughts are with the people of the ukraine at this time we know the news can be overwhelming and
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that many of you will be concerned about family and friends and colleagues affected by the crisis and the helpline
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i mentioned is available should you need somebody to talk to and we will continue to monitor the situation and seek ways to support and
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unite people professionals around the world not just in this current crisis but whenever there's violence or heightened tensions globally
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thank you so moving on to today's session in england the government has lifted all
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coven 19 restrictions including testing and self-isolation requirements as part of its living with covid19 strategy in
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scotland wales and northern ireland varying restrictions remain in place for now but there are plans to ease them in the near future
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this means that businesses face a new set of challenges with responsibility and decision-making ability shifted
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fully onto employers how should you be reacting to the current changes are you asking people to continue to
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self-isolate are you providing testing or keeping social distancing measures in place how can you protect employees especially
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more vulnerable ones and avoid presenteeism what are the legal implications for employers whatever you decide to do
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those are some really big questions we might not be able to answer them all in uh in a lot of depth but our panel are
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going to offer advice opinion and hopefully reassurance as well um we're going to hear from david first
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with the cipd view and then andrew is going to offer some legal advice and then we'll get a case study about what
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skanska is up to um please do get your questions in throughout and we'll take as many as we can they also receive some
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in advance um so we will take those once we've gone through hearing from each of our panelists um so that's it from me to
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now i'm going to hand over to david thanks david thank you casey hello everyone and
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welcome and um it's been a very tricky uh last few
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years and before we start it's probably worth acknowledging that i would i would describe them as roller coaster except roller coasters you tend to want to go
4:30
on again and it's definitely not an experience i imagine most people want to repeat so we've seen work impacted we've seen
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society impacted we've seen um people and loved ones impacted and as
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katie referred to just then we obviously have um some very uh worrying um
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and immediately sad scenes happening around the world at the moment and it has been a very difficult time to
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support people to lead people to make decisions the level of uncertainty has probably never been higher for most of
5:00
you uh in your careers and we're now facing a period where actually we have to
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have some more agency over a situation that is still difficult and requires a series if not
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an infinity or judgment calls to be made and some things we can probably set rules for and some things will be
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absolutely contextual and situational and that will be some of the tension i think that probably comes up in the conversation today
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and but the good thing is out of all of these bad things is that everything's been thrown up in the air and we have
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some agency over how it comes down so we have the possibility and potentially the hope to
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work out a better way of working a better way of being together and a better way of supporting people than may
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have been possible prior without some of these external triggers so out of what has been a very turbulent
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period what comes is the potential to start thinking about how we might want organizations to be
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what i reconcile that with and what i wouldn't want to fail to acknowledge is the increased demands on the profession
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at that same time so it has been a journey of discovery and challenge from if you cast your
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minds back the initial challenge of actually this seems like it might be a proper pandemic and i'll be prepared for
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that do we understand how that might work through to for many organizations fundamentally different ways of working
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or challenges to their business model right the way through a period and it will have varied uh across england
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scotland wales northern ireland in particular of very changeable rules
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where actually it's unclear at any one period what people should or shouldn't be doing simply because of the amount of
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times those expectations have been reset and we now reach a period
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where the onus is more organizations to interpret the situations around them and
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set out how they want to work with uh covert going forward but more
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importantly actually the expectations of the workplace more broadly so it's not easy
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but there is opportunity within that discomfort and that challenge so
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whether it is uh a series of dilemmas that you are facing in the workplace as to how do we deal
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with the one person actually he doesn't feel comfortable coming back into the workplace how do we
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manage people that are coming back in and have different expectations of how that experience may be or how you're
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managing workplaces where actually some people have kept going in a physical location and they're now meeting up with
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people that maybe aren't and all of the different expectations that come with and go
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alongside it from people's reconsideration of their relationship
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with work and their employer it's a hugely challenging time what do you do in terms of support and payment
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for people if they need to isolate are you still encouraging people to test when they might be coming into
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the workplace or come into contact with colleagues is that all colleagues are as much as vulnerable colleagues and these
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are all questions that organizations are wrestling with and as katie said we won't be able to answer them all today
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probably by a long time but actually we could we can talk about some of them the other challenge that we have and it's
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been quite interesting to hear some of the conversations around it is rethinking some of the things that were the norms before
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so when organizations are saying well actually from this point onwards we wouldn't like people to attend work if they have a contagious disease you sort
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of wonder how we ever lived in a period where actually that was expected of people if you have a cold if you're
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potentially infectious you still come into the workplace when there was an option for people to do otherwise so we have a really
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interesting tension between what we may have always habitually expected from people and actually if you go back to
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basics what might be reasonable expectations of people in the workplace and then the final challenge that i
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would touch upon so we can go over to harvey and andrew and some expertise would be around
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how do we ensure that we have sufficient dialogue involvement from people and engagement of people to understand their
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different perspectives around what is very unreasonable as we know that people have gone through a far from homogenous
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experience over the last few years it has been different and unique for almost every person based on their
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characteristics based on their situation based on how well they were equipped to deal with it and based on the support
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around them and that means that people will have had a unique experience that will lead to very different expectations and
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very different beliefs around what might be fair right what might be an acceptable level of risk and what might
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not and that's very much what organizations are facing into and i know there's a question in the chat already
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about cip's level of engagement with government around what happens next we're in active conversations with the
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relevant departments in scotland wales and england and northern ireland about
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what might happen next about the support for business but also you'll have seen possibly recently i'll call around
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improvements in statutory sick pay to take some of the challenge around people's need to attend work when it
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might otherwise be sensible for them not to be in that environment so there are a host of challenges a host of questions
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the good thing uh if you are a crpd member and you're on this is that they're probably things that are best
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solved for as a community we don't have a rule book for how we deal with this we
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will have some legal guidance and things we definitely should you shouldn't do but there will also be contextual pieces
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that we need to play with stay involved keep asking the questions and possibly critical to this is everyone
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understanding and taking some pressure off themselves that we are all having to find a way through
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it organizations are all attempting to work out the best and worst things that they might do and all discovering as
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those they implement those changes what does work in the way they anticipated and what doesn't and that's
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the power of community and communication it speeds up that learning process helps us have a better chance of getting to
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where we want to be and helps us explore and experiment with some of the things that might drive
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a better way of working better standard of work for people but actually that is in the interest of organizations and
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businesses as well the tension that's historically been painted between do we treat people well
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or do we run a successful business we've seen over the last few years that that is a very
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false positioning and that those two things go hand in hand so i'll wrap up there uh for the moment but i think as a
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as a framing we have a number of dilemmas that you will be facing that you will probably come across the best
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way of solving them is as a community but pulling on the expertise and content that i know will make available to you
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as you go thank you thanks very much david and i see we've got some questions um coming in i'm sure
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that andrew will address some of these in his um presentation on some of the legal things that we need consider
11:51
thanks andrew thanks katie thanks david um so yeah let's look at some of the um
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legal issues around what's happening right now um and the first slide um on lookout
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sets out well that sets out some of the changes that have already been introduced a week ago
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now and then there's others that will be due from the 24th of march and as kate has already said
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um this is all really being driven by changes in england um but i have got a slide in a moment that
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explains where we are in the other nations of the uk and really all four nations
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are on a similar journey or be it they're at different stages of that journey so what we'll say in a few moments about the challenges facing
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employers and how they might meet those challenges really applies to you wherever you are
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in the uk but just looking at england for a moment um a week ago now
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the requirement to self-isolate following a positive covid test that's the legal requirement in england to
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self-isolate following a positive kodi kobe test was removed as was the requirement to self-isolate
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for those close contacts of people um with kovid who were not fully vaccinated
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isolation support payments also ended and that includes the 500 pound payment
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for those on low incomes and there was also the end of the legal obligation on individuals
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to tell their employers when they are required to self-isolate now you may have something
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in your contracts of employment that require individuals to keep doing that but certainly their obligation under the
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law to do it um has now gone so how you manage that going forward will some will be
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something you want to think about whether it's through a contractual term
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or whether it's through a reasonable instruction to employees to let you know um when they find themselves in that
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position so you can um plan the best way forward for that individual and for the organization as
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well but they're all of the changes that came in in england um on the 24th of february
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and then coming up uh on the 24th of march which was the original
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intended end date for our code restrictions we've got the removal
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of an entitlement to ssp from day one for curvy related absences
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and we've also got the removal of the entitlement to be paid ssp the periods of self-isolation where the
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employee is not tested positive in other words they're isolating as a close contact
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or where the employee is not unwell so they may will have tested positive but they don't have symptoms
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ssp is no longer payable the 24th of march in either of those scenarios
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in other words we will be back to the old in inverted commas ssp arrangements
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whereby if somebody is ill and too ill to work they'll receive ssp
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after three waiting days but if they're well enough to work they won't be entitled to ssp and you
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would envisage in most cases that any um contractual six power rangers running
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alongside ssp won't envisage people having to isolate unless they've been amended over the
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course of the pandemic and so the same the same result will essentially uh
15:23
[Music] apply um sick pay for sickness query what we do about those people who
15:30
have to isolate for other reasons and we'll look at that in a couple of slides time the other thing to note is that
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um from the 24th of march you can no longer make claims under the coronavirus ssp rebate scheme
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so that scheme allows employees with less than 250 employees to recoup up to two weeks ssp
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for any employee who's off sick for the covert related absence um
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that applies to absences between 21st december 21 and the 17th of march
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22. so the claim period the last claim period you can claim for ends on the
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17th of march the deadline for making a claim is a week later the 24th of march
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and if we move on to the next slide please we'll look then at the changes that are due to come in from the
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first of april um and firstly on that date or around that date you'll
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have the removal of free testing whether that be pcr testing for people with symptoms
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or lfc testing for those who are asymptomatic
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however [Music] there'll still be a continuing
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need to follow government guidance where you can and that is that kirby positive
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individuals shouldn't attend work and should stay at home and avoid other people for at least five full days and
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close contact cases should work from home if possible um
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and i think i've jumped on a couple of slides so apologies i think i've i've mixed my notes up so let me jump back to this slide we've talked about the
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removal of testing um and we've talked about the removal of guidance on voluntary code
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status certification um and and uh at large venues
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um and that applies to me um uh as a football fan i was required to
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get a test before attending a game until very recently it was always something i ended up doing at the last minute for some reason but
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that's gone now no need for that um removal of a health and safety requirement for employers to explicitly
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consider covering their risk assessments but of course there'll be a continuing obligation to observe um general health
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and safety law uh to maintain a safe workplace um finally from the first of april 22
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the working safely guidance will either be updated or replaced
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with new public health guidance so watch out for that as well on the next slide please thank you and
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this is this is the slide i talked about earlier which just touches on the situations in the other nations of the uk
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so in scotland they're taking quite a cautious approach there's no plan in scotland
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to scrap the requirement to self-isolate the people who test positive although interestingly
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that's never been a legal requirement in scotland as it was in england until a week ago
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but there's still very strong guidance for people to self-isolate who test
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positive and that will that will stay in place scotland will keep the length of the quantity in period under review at the
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moment i believe it's still 10 days but they're keeping that under review they
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have had in place throughout the pandemic a recommendation that people work at home where that's
19:00
that's possible they're now recommending that employers consider hybrid working arrangements
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but obviously still a very cautious approach in scotland in wales the requirement to self-isolate is a
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legal requirement for those who test positive that remains in place for now
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although it can be brought to an end after six days subject to two consecutive negative lfts
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um that will be reviewed probably around the end of march
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and then the situation in northern ireland is pretty much as it is in scotland in the sense that again it's never been a legal
19:37
requirement for individuals to self-isolate after a positive test but that has and remains the subject of
19:44
very strong guidance to do so um again uh
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the need to self-isolate can be brought to a premature end after six
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days following two consecutive negative lfts
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okay next slide please so this is where i catch up with myself and start talking through those issues i started
20:07
to touch on before why would you want employees to continue
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to self-isolate as an employer if they either test positive or have close contact with
20:20
the individual who is positive well firstly to follow continuing government
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guidance um which states that covered positive individuals shouldn't attend work and
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should stay at home and avoid other people for at least five four days uh subject to uh negative lfts on days
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five and six and also that close contact cases should work from home as well and avoid contact with anyone at high
20:48
risk obviously you may have such people in your workplace so that guidance is in place and will
20:54
remain in place notwithstanding the change legal status of the requirement uh to self-isolate
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what else would you want people to self-isolate well of course as we've already mentioned there's a due to due to care towards
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employees generally certainly in terms of health and safety law and there is a particular duty of care
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towards those at highest risk of serious illness if they catch covid
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and that will tend to be people with other conditions
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or perhaps people who are older because as we know older people as a group have been impacted more
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by covid in a serious way than other groups generally speaking
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so you've got potential there for direct discrimination claims but particularly indirect discrimination claims
21:46
based on age and disability um if you get this wrong so obviously important to have regard to
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those employees and those groups of employers in your workplace what else would you want to
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ask people to self-isolate to try and reduce levels of transmission in the workplace
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as well as protecting your employees from serious impacts you
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also want as many people at work as possible you don't want them off work with even mild cases of covid
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if you can help it so they're all good reasons to continue asking your employees to self-isolate
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where they can where you could where you can accommodate that disincentive to doing that well firstly
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of course there's no longer a legal requirement to do it no possibility of a fine
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for letting someone with kobe come into the workplace and you might fear impacts on
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productivity if too many people self-isolate at once for employees of course
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there might be particular concerns for them around levels of sick pay they might receive
22:52
while self-isolating and as we'll see that might not be any sick pay at all um so they may well feel pressured to come
23:00
into work even though positive so there are disincentives as well
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but i think our advice would be where possible try and keep positive
23:12
people out of the workplace if you can and how you might do that we'll look at on the next and final slide
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so risk first of all we've mentioned that the breach of uh potential health and safety duties to begin with
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um you've got the risk of fellow employees downing tools if they know that somebody is positive in the workplace especially
23:36
those who are vulnerable for whatever reason and don't forget that employers or workers who feel that their health
23:42
and safety is threatened um imminently threatened have the right to
23:48
remove themselves from the workplace and they're protected when they do that from being dismissed or being subjected
23:54
to a detriment and as we've already touched on as well you've got the risk of claims by fellow employees
24:00
be their director in description discrimination claims query would insisting on people
24:05
attending the workplace if symptomless would that be a proportionate means of achieving a legitimate aim well only if you
24:12
absolutely need people in the workplace and you need them in the workplace there and then um i think otherwise trump
24:19
builders would look pretty pretty carefully at any claim that you had to have people in the workplace who were positive and
24:26
potentially presenting a risk to other employees so most importantly one of the solutions
24:33
um where people are positive have conversations with them first and foremost encourage them
24:40
uh to take annual leave if they have any and you leave you if they have toil
24:45
encourage them to use that where possible and as always throughout this pandemic
24:52
encourage flexible working and particularly working from home when that's possible
24:58
consider pay arrangements for purge of self-isolation as we've already seen on the 24th of march
25:04
those who need to self-isolate who um are symptomless
25:10
or are self-isolating because of contact with others will not be entitled to ssp
25:15
and almost certainly depending on what your contracts say almost certainly i won't be entitled to
25:21
the contractual sickbay either so think about how you manage that do
25:26
you pay them in full if you want to insist on people being away from work
25:31
and there's no option of them working from home then really the correct position unless there's anything to the country in the
25:37
contract will be to pay them in full which is obviously a financial burden for employers
25:42
but failing to pay them in full unless you're authorized by the contract to withhold pay
25:48
would certainly give rise to a claiming contract or for unlawful deductions and might also
25:54
give rise to a claim for constructive dismissal in extreme cases so do think about how you manage
26:01
um absences for that reason encourage people to work from home if
26:06
they can or take annual leave but if the last option is to ask them to stay away
26:12
anyway think about paying them because without doing so you're exposing yourself to potential claims
26:20
and i think that covers that for now over we'll look at some questions obviously at the end of the session but um i'll hand back to uk in the
26:26
meantime thanks very much andrew i'm great over you as always um a few people asking will you get the slides yes the slides
26:33
will be available to download um from probably this afternoon or tomorrow um we'll come to your questions in a minute
26:39
i'm just going to ask harvey to kind of give a contextualized example of how this is working in practice at his
26:44
organization thanks javi george thanks casey hi everyone uh so for those who are not familiar with skanska we're a
26:51
global construction company we're headquartered in sweden and we operate around the nordics the u.s central
26:56
europe and in the uk and in the uk we have about three and a half thousand uh workforce across five main areas of
27:03
operation so large infrastructure building and real estate high-speed rail building services
27:08
and piloting ground engineering so the approach that we've taken right from the start of covid has been to base
27:14
our strategy on the government strategy and position and actually what we found is that served us very well because it
27:20
gives us something to tie back to and people can make sense of it and we've had very good feedback from
27:25
our people about the clarity of our position even when the government position of guidance sometimes as you'll
27:30
remember has been less than black and white and by way of that additional context we actually have two distinct type of
27:36
workers so those people based on site because obviously we're a very physical organization and then those based in
27:42
offices and for those people based on site in addition to our own employees
27:48
uh the majority of people on site are employed by supply chain partners because we very much operate on a
27:54
non-directly employed basis sort of construction program management
28:00
and we continued to operate the site successfully right the way through the pandemic because we took a risk-based approach to revising working practices
28:07
and as a result of that we've had very low levels of infection across the workforce and i do put that down very
28:13
much to the way that we've redesigned the working practices and patterns around the risk assessments that we've
28:19
carried out and in the offices and sites we continue to ask people to maintain distancing to
28:24
wear face coverings in the communal areas but as a result of the change that andrew outlined we've obviously
28:31
taken a step back and reviewed the approach to make sure that it that it's still valid and fit the purpose
28:38
and we know that despite the sense you get from the media and also the government i think that somehow this is all behind us and which for clarity i
28:45
absolutely disagree with many of our people are rightly still worried about catching coved and are nervous about the
28:51
workplace and particularly i think that's true for the offices so despite the recent change in the
28:56
government position we've been very clear that you must not come into work if you have any signs of coveid or
29:02
you've had a positive lateral flow test and we're also strongly encouraging people to continue to take lateral flow
29:08
tests twice a week for the period that they're available and we've positioned this very much as being in line with our
29:14
culture and one of our values which is very important to skanska is about care for life so what we're saying to people
29:20
is the reason we want you to stay away from work if you have symptoms or test positive is in addition to looking after
29:27
yourself we also want you to help keep your colleagues safe by not risking them by passing on the virus and
29:34
as it stands at the moment that message has landed i think pretty well so in terms of what andrew was saying
29:40
about payment we're obviously continuing to pay people full sick pay under our absence policy um for those people who
29:47
stay at home because they've got symptoms or tested positive under a lateral flow test
29:52
and this obviously does raise the subject of trust because we know in any case there will always be a small number
29:58
of people that will abuse a situation but frankly us and most organizations have
30:04
policies and processes in place to deal with foul play and we'll deal with that under the
30:09
respective policies the supply chain situation is a bit different in that the sick pay
30:15
arrangements differ across our suppliers but the message that we've given to all of our supply chain partners is the same
30:21
which is that we don't want people coming onto skanska science if they've got symptoms or a tested positive under
30:27
a lateral flow test but during the first wave of the pandemic we introduced an informal
30:32
flexible program working called flex it and it's interesting andrew talking about you know almost a call to
30:38
employers to have these kind of things in place and what flex it does it allows people and teams to determine the amount of
30:43
flexibility they've got over when and where they work now clearly this is more difficult for those working on site because it's a
30:50
very physical and locational requirement but we do believe that every
30:55
role has an opportunity for a degree of flexibility and this is actually being helpful to us in terms of making it easier for people
31:02
who've got symptoms not to come into this site or the office and with regards to the offices i mean
31:08
we have two main offices one in maple cross in hertfordshire and one in moorgate in london and we are now starting to actively
31:15
encourage people to come back into the offices to experience the things that everyone's missed so social interaction
31:21
team effectiveness and sharing learning and since the restrictions were lifted
31:26
um the numbers are really starting to increase and we're now at the region of about 25 percent of pre-pandemic office
31:32
levels and we've been clear with our folks that in line with our
31:37
focus on creating an inclusive workplace that people really should feel free if they want to to continue to wear face
31:42
coverings if that makes them feel safer and actually asking all of our people to respect other people's choices um around
31:49
whether to wear face coverings or not and the reality that we're seeing is once people are back in the office a lot
31:55
of those initial fears do quickly dissipate and life starts to feel quite normal again quite quickly
32:02
so i guess uh to kind of wrap up personally speaking i have to say i'm very concerned about about the living
32:08
with kovid plan which to me fall short of what i would have expected in terms of a kind of a
32:13
mid to long term approach in particular the things that i really worry about is that employees no longer have to tell their employers if they are
32:20
self-isolating or self-isolate or take daily tests if they've been in close contact with someone who's tested positive regardless
32:26
of whether they've been vaccinated or not and the worries i've got unfortunately do get worse when the availability of
32:32
free natural flow test ends because i worry that it'll be almost impossible to know who has coveted and who hasn't
32:38
because given for the majority of people it just presents us a cold a heavy cold and that was certainly my experience i
32:44
had the tail and the delta bearing um towards the end of last year and if i hadn't lost my sense of smell
32:50
and taste and tested positive under a pcr not actually sure i'd known i'd have had and therefore could have gone into
32:56
the workplace and passed it on to other people now one of the questions that's been asked of us is will we provide test kits
33:02
for employees when the government free issue ends and we're still thinking about what we need to do in regards to
33:08
this and i also think that the other reflection i have is that based on what we know about how viruses mutate and
33:14
also the warnings from people like chris whitty i'm quite sure that omicron is not the end of the road as i think it's
33:20
been painted to be and that the next bearing i'm guessing could be even more transmissible and possibly more deadly
33:26
than omicron worries me that would kind of lower ourselves into a full sense of security that somehow uh the efficacy of
33:32
the virus has been reduced in some way so i suppose my my closing comment is
33:37
that what we have in place now i firmly believe is only for now and the employers will need to be ready
33:43
to act really quickly and be ready to consider putting back in place stricter measures because i really don't think
33:49
that we're into the road i think we're at a junction now but i think things could change very very quickly and the problem is i think
33:56
the testing regime that we had before particularly pcr is it enabled enabled society and
34:02
government to be very quickly identified these new strains and of course that's going to be taken away from us so we may
34:08
actually start to see in the workplace things quicker um than actually um
34:13
the way that governments pick those things up so i think there needs to be quite a lot of thought given about how we feedback what we're seeing uh to
34:19
government to enable any change of policies to take place so katie back to you thanks thanks
34:25
thanks very much harvey i'm going to go to questions um got um quite a few first one i'm going
34:31
to ask um david i'll put this you first carver you kind of covered it a bit but maybe we'll come back and we'll go to andrew for a legal viewpoint lots of
34:36
questions about testing if tests are no longer free should employers be providing them is it fair and reasonable
34:43
to expect people to pay for them themselves if as harvey intimated people don't know that they have have covid and
34:50
are coming in asymptomatic david what's your view on kind of how employers deal with this kind of changing testing
34:56
landscape uh i think it's going back to the overarching duty of
35:01
care and so if there's less flexibility you're expecting people to be in pro
35:06
close proximity and you think there's higher risk than an organization needs to think about
35:12
actually it's long term versus short-term costs in that scenario because as andrew pointed out rightfully
35:18
there's a risk of disruption there's a risk of severely impacting people's health one
35:24
of the things that we haven't really spoken about is actually caring implications as well but some people will be anxious and nervous not because
35:30
of the risk of their immediate health but because if they catch an infectious disease it will have a consequent risk
35:36
for people that they care about or close to so organizations are not under an awful lot
35:42
of cost pressure at the moment but depending on the environment it should certainly be risk assessed and the
35:49
organization should be thinking really seriously about how does it minimize the risk to its people minimize the risk to
35:55
its operations and minimize the risk to the people that might be in contact with them
36:00
thank you um harvey can you share any more on kind of what you're doing around asymptomatic
36:06
or for thinking around how you would approach that yeah i think as i said casey we're still
36:11
we're still considering what the approach should be um you know we've looked into the cost of providing um
36:17
natural flow tests but as david said it's balancing the short and long term because i think there is a very real
36:22
there is a very real danger people don't know they got it because i think still a third of people presenting and i said well don't present because they're
36:28
asymptomatic um but also people might be confused whether they have it or not or just coming to work as david was saying
36:34
you know historically people have come into work with the cold and that was kind of socially acceptable i think it's less so now so we're trying to weigh up
36:41
the productivity perspective um whether there's greater risk in terms of not testing um and potentially having a kind
36:48
of you know because all of our sites you know or majority of our sites particularly the building ones
36:53
they're indoors and and you get large numbers of people together so unfortunately they would be breeding
36:59
grounds i think for transmission and i think the risk asses you know the mixture of the vaccinations the testing
37:04
and the risk assessments that we've put in place we've done a good job across those three strategies of kind of keeping the
37:10
workplaces safe but if you don't know what you've got coming through the gates it's um it's much more difficult so it's
37:16
we haven't we haven't concluded a position yet um it's much more discussion i think still
37:21
to be had on that thanks um andrew can i come to you um same same question but um some people
37:27
are asking kind of what um advice can you give businesses to require employees to prove provide proof
37:34
of covert positive symptoms or i guess also negative symptoms i think i think it's entirely reasonable
37:40
to ask or or seek ways in which you can confirm the coping status of people coming into
37:46
your premises and working alongside your other employees thorny issue is around cost
37:52
and what you do about that once free testing ends from april onwards and really unless
37:57
you've got something contractual already in place which is all you know unlikely it's one for
38:04
negotiation between employer and employee as to who bears the cost of that
38:09
um i think most employees would see the see the sense in testing but they might be more reluctant to get involved with
38:16
it if it's a cost to them and one particular issue to be aware of is
38:21
minimum wage issues because we've seen cases where employers who employ people right on
38:27
minimum wage have inadvertently ended up paying less than minimum wage by requiring to spend
38:32
money on uniforms or on equipment and requiring them to spend
38:37
money on testing does run the risk of of ending up in exactly the same uh scenario and people and then
38:44
employees inadvertently um breaching minimum wage legislation and
38:49
being named to shame for that reason so that's definitely what to be aware of for those on on on lower incomes
38:56
as regards cost more generally it is one for negotiation because really it's not something i don't think
39:01
that most employers will be able to insist on thank you um we've got a couple of questions about
39:08
um how covid kind of going forward counts towards some of these sickness absence
39:14
records um david any any views on as it becomes as we move into this living with kobit
39:20
strategy how employers kind of report and track it
39:26
uh i think at the moment it would be normal as as weird as harvey says not i wouldn't i don't consider it done
39:32
and there there's a certainly a period of adjustment and there may be a period as harvey right in the outlines where we
39:39
may need to go back in terms of different restrictions and considerations i think um treating covid
39:45
and long covert um as uniquely different things needs to be done sensibly and on
39:51
its merits so there's something about uniqueness of the infectious profile and the impact it
39:56
can have but actually when it gets to things like long covered we need to think about the long-term care of people
40:01
with long-term sick problems more broadly and and it shouldn't be that organizations are
40:08
disadvantaging people who are presenting with medical problems that simply have a different name but may have similar
40:14
manifestations so i i think um treating covert as a unique event
40:20
absolutely made sense as organizations come to deal with it longer term need to think actually around the sickness
40:25
policy more broadly the way that's treated the way people are supported if they have long term health issues
40:31
thank you we've actually got a few questions about long covered and asked one of my lovely colleagues rachel could
40:36
you put a link to the um the report we've got out on long covered in the chat um but on the topic of long covered
40:42
harvey um do you think um employers should be doing kind of more around it somebody said um we're making
40:48
reasonable adjustments monitoring but should we be doing more there they've got employees presenting with a self-obsessed long-term disability
40:55
sorry self-assessed yeah it's interesting we've we've actually not had many cases of long
41:01
coving but i suspect is probably because we're quite early in the cycle um and i guess we're also fortunate that we our
41:08
absence policy and payment policy is quite generous um so whilst a bit like they were saying
41:15
whilst we have the policy in place and actually we treat kobe now um so it contributes to the normal kind
41:21
of build-up of you know sickness days that are taken in terms of what people are allowed to have
41:26
um there's always an element of judgment and i think you have to have that element of judgment because we are we're
41:32
in uncharted waters you know we're dealing with something that we don't fully understand that's still very new
41:37
and and of course typically in hr and and everywhere else we always try to we always try to kind of button everything
41:43
down and look for hard and fast solutions and of course when you've got something that's new and evolving at such pace i
41:49
kind of think we have to we have to be more flexible and apply more judgment um in terms of what's going on and be
41:56
prepared to to to act quickly but also to change our views and our
42:01
policies and processes as this thing starts to develop and we know more about it
42:07
and andrew any kind of legal thoughts um on kind of long covered as it emerges and we get more and more people
42:13
presenting with it absolutely i mean as our attendees will know disability is very broadly defined
42:19
in the equality act um and so a condition that's likely to last for six months or longer almost
42:25
certainly will be regarded as a disability and therefore the duty to make reasonable adjustments arises
42:31
um you mentioned um a case where somebody had self-diagnosed as having long
42:36
covered i think you would treat an illness like this um in the way you would treat any any
42:42
long-term illness and you you should obtain medical evidence where you can whether from the
42:47
employee's gp or consultant or from an occupational health service
42:53
and make decisions based on the information that comes back from that expert
42:59
expert input i think the issue with long covered will be though that it's still not clearly defined as a condition
43:07
i think we're still learning about what it is what it entails and the various symptoms that people might present with
43:12
so still still treat it with caution and do listen to your employees when they're telling you
43:17
the symptoms they're suffering and how they're personally being affected and as with any
43:24
capability or sickness management process do manage it on an individual basis and take into account
43:30
individual characteristics but certainly obtain medical evidence and treat broadly in the same way as you
43:36
would but bear in mind it's a new condition and we're still not yet absolutely clear as to what it might entail so if there
43:43
is any um uh doubt as to what as to what the employer is
43:49
experiencing exercise um discretion in favor of them rather than
43:55
the employer on this particular one i think yeah um andrew i'm going to stick with
44:00
you i've got a few questions on face masks um where do employers stand on that can they um require
44:06
employees to wear them and somebody said they put a policy in place if someone wants to come in after testing positive they have to wear a mask other people
44:13
asking can they require people to wear masks i think that's a reasonable
44:18
request to make of people it depends to a degree on the um
44:24
circumstances and the particular environment that people are working in but i think that is a reasonable uh
44:29
request to make of people um people will argue back on the basis that
44:35
we're no longer required to wear face masks in public places um and also there'll be some individuals
44:40
who have good reason not to wear a mask so again it's about having individual conversations with
44:46
those people and finding out what those reasons are because again if they're disability related if somebody has asthma
44:52
and finds wearing a mask intolerable for example and insisting on them doing that might well
44:58
uh give rise to an issue with with them and potentially create a claim that they might pursue but i think as a
45:04
general rule following that policy is a real is is a reasonable thing to do
45:09
um harvey david got a few questions about encouraging people back to offices um people struggling to um get
45:18
people back into shared spaces people who are um who are not absolutely vulnerable refusing to come in want to
45:23
carry on working from home um david come to you first what approach do you think employers should be taking around kind
45:30
of reluctant returners to to any space so initially empathetic so the starting
45:36
point has to be i can understand how someone could feel like that so i could understand why
45:42
someone would be anxious i can understand why this might be a change i can understand why it may be difficult
45:47
actually for me to understand that if i'm in a different situation or circumstance then it's about um being really clear on
45:54
the messaging in the organization and the approach the organization will take so it's very clear what is there to make
46:00
people safe or how people would engage and then to the point that andrew has made no no harvey has multiple times
46:06
it's about having some flexibility within that so why why do you require people to be back in is that a general principle or is
46:13
that necessary for their role because they're slightly different things is it um appropriate for that individual
46:20
if they can work flexibly and if they have a genuine need so it might be mental health or well-being issue it
46:25
might be a broader health issue they all need to be factored in so i think there are things you can do to encourage
46:31
people back in you can lean on the importance of the social connections that people may have
46:36
you can lean on actually the fact that you know for many people a change of scenery will be welcome but what you
46:42
don't want to do is probably have people in that environment unnecessarily while there is still an infectious disease in
46:48
circulation you probably don't want to force people who could do their job perfectly well from home
46:54
into a position where they feel fundamentally uncomfortable in the office that said there's stuff that you
47:00
can do and things that you should do to make people feel as comfortable and secure when they do come in as possible
47:06
thanks um harvey can you give some examples of what you're doing in practice yeah i think i think i i very
47:12
much agree with david that it's about empathy and it's about discussion and and it has to be about need and and
47:17
that's why i talked about our flexit program you know first it's very simple the first thing is
47:23
what what are the business needs or the customer needs you know what is it that the job output needs to needs to needs
47:29
to deliver and how can it be done second is then what's the needs of the team in terms of you know connection learning
47:35
sharing all of those things and then it's back and then it's about the preferences for the individual in terms of their working
47:42
pattern so we haven't we haven't issued a three-line whip what we're now starting to do is talk more in our
47:47
communications in our ceo briefings about the benefits of coming back into the office one or two at least you know
47:52
start coming in maybe one or two days a week um and what we're starting what we're
47:58
finding is for the majority of people as i said actually once they're in they realize that that actually
48:04
the environment is okay the atmosphere is okay our kovid levels are very low we
48:09
talk quite a lot about what we're doing to keep the officers safe about the increased ventilation the fact that you
48:14
know you know trying to create give people personal space um and i guess but i
48:21
guess at some point there will be a residual number of people who who just won't want to do it and then i guess
48:26
they'll be the difficult conversations if if we need them to come into the office i suppose you'll end up in a frustration of contract and then and
48:32
then the inevitable discussions that that come on from there i would hope that that would be very very few and far
48:38
between and i think we i would hope again we're quite a long way away from that okay and
48:44
yeah david yeah i i'll just say the story on that and i think you will have the vast
48:50
majority of people will have legitimate reasons for that and we should be designing organizations
48:55
around people who are doing the right thing rather than the exceptions to it that said i spoke to an hr director recently
49:02
and they've been attempting to encourage someone back into the office eventually ended up in a position where there was
49:08
clear conflict between them and then they noticed on the uh on the hr system that they'd moved to the other end of
49:14
the country during the pandemic and we're no longer in any way commutable whatsoever so i i think but they're the
49:21
fringe and outlier cases that we shouldn't be designing around we should be designing around what's right for
49:26
people who we assume have the right intent thank you um andrew somebody's asked
49:32
about um vaccinations um where do we stand legally now in not allowing those who are
49:37
unvaccinated to return to work in a workspace on office well i think we were never quite sure
49:43
where was legally on that um one or two employers had taken a fairly robust approach to it and said uh if you're not
49:49
vaccinated he's not coming back to us and but obviously the government's back track from implementing that kind of
49:54
requirement in the care setting um again it comes down to individual
49:59
circumstances really i think requiring people to be vaccinated
50:05
uh before they come back it might be arguable in certain settings like care settings or in settings where
50:12
you might have regular contact with other vulnerable people but it becomes hard to justify in a more
50:19
general setting or in a more general workplace especially when the government's backtracked from making that mandatory
50:26
in in care and health settings as i've said so i think you have to tread with care and
50:32
again it's again about talking to individuals because there'll be some individuals with very good reason not to
50:38
be vaccinated and insisting that they are will be discriminatory in some way but that's
50:45
the risk you running imposing that kind of um requirement i think the way a lot of
50:50
employers have gone about this is actually to be a send a positive message out we've had this many people with the
50:57
first job this many people with a second door booster jab we're now running at 60 78
51:02
sending out that repeated positive message try to try and up vaccination rates in that way rather than impose something as
51:09
a requirement yeah um can we talk a little bit about um
51:15
fairness and people who can work from home versus um people who are just unable to work from home and harvey how
51:22
are you dealing with that um kind of potential division in in a workforce some questions about
51:28
yeah some people are unable to to work from home yeah we've
51:34
we have some of that and it's more prevalent i'm guessing on site um so it was much more of an issue during the
51:40
first phase of the pandemic than it is now i think a lot of those issues have just fallen away um a lot of the side
51:46
people were saying you know it's okay for them being able to you know being able to kind of work work from home and
51:51
actually when you when you go you know we'll actually would you like to do that and people say no i didn't join the industry to work from home well it's
51:57
like you know so there is always sometimes that sense of what somebody else has got um and actually i think
52:03
we're over that now and and people understand i think they're much more informed about why that why
52:09
that might be and to say we haven't have really any any real issues we've managed to work through any of those cases where
52:15
where we've had reluctance or issues i'm sure they will come um but i think we'll
52:21
just deal with them in the usual way through discussion and diplomacy and and try to work out an agreeable solution
52:27
but but the kind of sense of factions has gone now good to hear i can see in the chat
52:34
somebody acting as a dealer for lateral protests
52:39
a link there and then various pricing options um available um if anybody's i'm interested in bulk buying um can we talk
52:46
a little bit um we're running out of time rapidly but a bit about presenteeism in general and people coming into the office sick um a few
52:53
people asking around you know can you ask people to or should you ask people to test if they're presenting any kind
52:59
of cold like symptoms but i guess the um following question on that would be should you should people be coming in at
53:05
all when i'm presenting with any kind of sexual feeling under the weather and david what's your view on how this is
53:11
going to change how we think about coming to work sick i really hope it fundamentally changes
53:16
it it's one of the least useful aspects of our concept of work ethic that we can
53:23
really show commitment by putting other people in danger of catching the nasty bug that we've picked up it doesn't make
53:29
sense from an organizational point of view and whether or not people keep coming in we know that they aren't optimal at
53:35
their time in terms of that performance and we know that they're risking other people being less optimal we know their
53:40
recovery time will go up as well so there is nothing good or laudable about people dragging themselves into work
53:47
it's been glorified in a really unhelpful way i am hoping that this is one of the
53:52
points where we start thinking about not just covet but other any kind of infectious disease and say that if we've
53:59
got an opportunity for people not to be in a working environment with other people when they might make them sick
54:04
we will fundamentally discourage that by the way we think about our policies procedures support mechanics
54:11
okay and harvey do you agree is that something you would like to see i think one thing i would
54:17
absolutely love to see from a personal perspective as well as a corporate perspective
54:23
but i think the reality is i think it's my i think it's much harder
54:28
when when as i said so i think for the site based people where you where you've where the work is less able to be done
54:35
elsewhere um i think it's more difficult but but but there's ways and means around that you know if it's usually the
54:40
most infectious for one or two days in the grand scheme of a year it's it's it
54:45
really shouldn't be a problem but i am a bit like david i am starting i'm starting to sense there is a sea change
54:51
happening and what we've got to do is that i think from a leadership perspective this is the key to it i think leadership and culture
54:57
is that the leaders need to be seen when they're sick to be holding meetings from home by by by teams or zoom
55:04
and actually role modeling the kind of behaviors you want to see if if leaders come in coughing and sniffling and stuff
55:09
that actually that just sets the tone that actually that's what's expected um so you know encouraging the senior teams
55:16
if they're unwell um not to do that yeah and andrew somebody's asked if somebody is presenting with symptoms can
55:22
you insist that they take a lateral flow um
55:27
it comes back to that cost issue again but if you can provide them with a test i see nothing wrong at all with asking them to take a test it's entirely
55:33
consistent with the employer's health and safety obligation to maintain a safe workplace so that's a perfectly
55:39
reasonable request to make and i think asking people to work from home if they can is is a reasonable as well
55:45
there's one little issue around pay of course if they're well enough to work uh but not well enough in your in your
55:50
view to be in the workplace then you should allow them to work at home if that isn't possible
55:56
and they're presenting for work consider paying them in full as we talked about earlier otherwise there's a potential uh
56:03
some kind of legal fallout from that but yeah i think generally speaking taking that line is entirely consistent with
56:10
the employer's obligations as to health and safety i'm going to bring it to a closer i'm
56:15
aware that we haven't answered all the questions some of them are quite um detailed um so apologies i didn't get to
56:21
those um andrew's slides will be available to download you will be able to get those i think quite a lot of the
56:26
um the questions you'll be able to figure out the answers from that but also like to remind you that if you are a cipd member you do have access to the
56:32
employment law helpline and via hr informs so that's available for you 24 7 and you can call and go through um your
56:38
issues over the phone with somebody and you'll get a response there um this session will be available to um watch
56:44
again um should be available on the cipd website from this afternoon um i'd like to thank andrew david and harvey thanks
56:51
so much for giving up your time and insight thanks everybody for attending um i hope that it's answered at least
56:58
some of your questions um we as harvey said use that phrase we are in uncharted
57:03
territory um and i think it is up for up to employers to um
57:09
to think about what is what is reasonable for you and for your and for your workforce and to come from a place
57:14
of empathy as well and compassion um but that's it from us for now um do check on the opi website for more information
57:20
about upcoming webinars but please have a great afternoon thanks very much
DISCLAIMER: The materials provided here are for general information purposes and do not constitute legal or other professional advice. While the information was considered to be true and correct at the date of publication (3 April 2020), changes in circumstances, including the end of the furlough scheme on 30 September 2021, have impacted the accuracy and validity of the information. The CIPD is not responsible for any errors or omissions, or for any action or decision taken as a result of using the guidance. You should consult the government website for the very latest information or contact a professional adviser for legal or other advice where appropriate.
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