Employers fear legal claims as COVID-19 restrictions lift

23 Feb 2022

Business leaders are fearing a rise in employee litigation after COVID-19 restrictions end and employees are asked to come back to offices – with a third of workers (32%) not having been back to their workplace since the pandemic began.

Research by risk management firm Gallagher amongst 1,000 business leaders and 1,000 UK office employees found that 40% of businesses are suggesting that workers should be in the office full-time now or in the near future, or a minimum of part-time (39%), as they implement a hybrid model.

However, a third of business leaders (32%) say they are meeting resistance from their employees around returning to the workplace even part-time. With one in four (25%) businesses uncertain if they can insist their employees return, business leaders fear an impending wave of complaints and potential litigation from their teams, who claim they are just as effective when working from home.

Overall, almost half of business leaders (44%) report that employee litigation in the year ahead is a major risk to their business, with complaints due to asking employees to come back into the workplace post COVID-19 (37%) the top concern. This is followed by other potentially sensitive topics related to the pandemic including complaints due to mandating that employees are vaccinated (31%), or because leaders are challenging workers who say they need to self-isolate but aren’t being truthful (31%).

While many companies will have the law on their side as their contracts will state a place of employment, just under a quarter (23%) report that their contracts don’t stipulate that employees need to work from a specific location, while a further 9% don’t know if they do. Meanwhile, one in eight (12%) businesses are reluctant to enforce contracts and risk damaging employee morale.

Some companies have already taken a firm stance, with 19% of businesses saying they have terminated an employee’s contract due to a refusal to come into the workplace, while a further fifth (20%) have threatened to do so. With more conflict on the horizon, a further 18% expect they will need to issue demands to their workers to get employees back into the office.

Employers have a number of reasons for making the effort to get staff back into the workplace. Chief among the motivational factors is the feeling that workplace culture suffers with homeworking (31%). Businesses also remain split over whether they operate equally well (29%) or less efficiently (26%) with employees working from home.

In terms of litigation, employers also expressed concerns about a knock-on effect due to the legacy impact of COVID-19 on the labour market. Most business leaders (58%) say they are worried about how they resource their workload due to staff turnover and sickness levels – which explains why 20% expect complaints or litigation related to stress due to overwork or pressure.

Commenting on the findings, Neil Hodgson, Managing Director of Risk Management at Gallagher, said:

“The return to workplaces is a complicated task for senior leaders at UK businesses. Keeping everyone happy can be challenging, and while some employees feel that they have no need to be in the office, there is an awareness that leadership needs to implement policies consistently. But many businesses remain uncertain just how far they can legally mandate the return to workplaces – leading to concerns about litigation and complaints.

“Even when businesses are sure they are on safe ground with enforcing the return to workplaces, there is always the risk that attempts will be made to fight the decision. The fact is that employee litigation has been on the rise for some time and disagreements as a result of COVID-19 are likely to further exacerbate the issue. No company is immune to it and the costs of defending employee claims can devastate a business.”

Speaking to SmallBusiness.co.uk, Tony Prevost, HR director EMEA at Skillsoft, said:

“If an employee’s contract of employment states their workplace then the company is within its rights to ask employees to return to the office. However, if delivered incorrectly, employers may receive a raft of flexible working requests, which will be hard to defend against since people have been working from home for a long period of time. Thus, companies are advised to look at phased returns to the office, respecting the environment that people have become used to.”

Kate Hindmarch of Langleys Solicitors said that employees with at least 26 weeks’ service have the right to ask for flexible working. This can include working from home for some or all of the time. As an employer, you are required to consider requests in a reasonable manner and can only refuse a request for one of the eight business reasons permitted by legislation: