By Daniel Parker, Solicitor at Winckworth Sherwood
Many businesses across the UK are now well-established in working almost entirely remotely from home. Whilst some sectors are struggling, the unprecedented circumstances have given rise to high demand in others. The same remote-working processes can be used to recruit new staff as the extended lockdown now means much recruitment will inevitably have to be undertaken remotely. Many businesses with overseas offices are already well-versed in hiring remotely, whereas this will be a relatively new phenomenon for many UK focused businesses. In this context, the urgency of the current global situation requires certain precautions to be taken.
As in many business decisions, careful due diligence is vital, as the reliance on technology and corresponding at a distance naturally gives rise to opportunities for misunderstanding and, at worst, misrepresentation. Background checks through third-party providers may prove useful; however, employers should, as ever, inform candidates of how their data will be used. Given that interviews will be conducted remotely, there may be a greater temptation to rely on candidates’ online presence and their social media profiles, but even in these exceptional circumstances, the risk of unconscious bias and discrimination must not be forgotten.
On the other hand, it is essential that employers continue to check prospective employees’ rights to work in the UK as there remain strict (and potentially criminal) sanctions for failing to do so. However, the Government has recognised that the usual process of obtaining original documents is often impossible in the current circumstances, and new guidance has been issued temporarily permitting checks of scanned documents at a distance. Consequently, keeping careful records that these checks have been carried out is as important as ever, if not more so.
Once the appropriate candidate has been found, it is entirely possible to negotiate a package by telephone or over a video call, though these should always be reflected in written, detailed documents which meet the statutory requirements. Employers who document confidentiality, intellectual property or post-termination obligations separately to their contracts of employment should be particularly careful to ensure that these are at least executed at the same time. At a later date, these documents may need to be executed as deeds in order to be enforceable and, given the difficulties which candidates may experience in finding witnesses to any such deeds, this increases the likelihood that crucial obligations will be forgotten altogether.
Despite careful planning and negotiation, the unpredictable wider conditions mean that rapid decisions may need to be made about the sustainability of new hires against changing business needs. Unfortunately, unless guidance changes, future recruits will be unable to benefit from the Coronavirus Job Retention Scheme and cannot be placed on furlough to respond to any downturn. For employers, the risks associated with dismissing recently-hired employees remain relatively limited, often simply to contractual notice periods, given that employees must accrue two years’ continuous service in order to obtain unfair dismissal protections. The primary risk, from the very outset of recruitment, is claims for discrimination, but this can be minimised with fair and rigorous processes.
In any case, as with existing employees, communication is key. If a role is short-term or uncertain in duration, that expectation should be made clear as a matter of fairness and certainly before any successful candidate secures a position, joins a team and gains access to confidential information.
Good communication is also critical when any new recruit starts their role. Managers should be prepared to adopt a more interventionist and nurturing style than may otherwise be their normal approach and allowances should be made for reduced productivity, not least given the reliance on technology and the fact that the employee may never previously have worked from home.
One area we have found that also requires attention for home-working is health and safety, both for new and existing employees. If the new employee’s role involves working from home and using a computer monitor or screen for prolonged periods, employers should ensure that employees are aware that they need to take proper breaks and a workstation assessment should ideally be undertaken. That is inevitably more challenging during the present pandemic but the key obligations in the Health & Safety at Work Act 1974 require employers to do only what is ‘reasonably practicable’ to ensure a safe working environment. Moreover, the Act recognises that, ultimately, employees’ homes are not generally under employers’ control.
Furthermore, employers should ensure that working from home arrangements do not disadvantage disabled candidates and that reasonable adjustments are made to enable working from home where possible. Disabled employees’ needs may be harder to perceive when working alone at home and new joiners may feel particularly reticent to make requests. Employers should therefore take a proactive approach, as small steps, such as reimbursing reasonable equipment costs or temporarily renting additional resources, can not only mitigate the legal risks but also enhance productivity and morale.
While the coming weeks and months remain uncertain, it is also worth giving thought now to a plan to integrate new employees once the restrictions have eventually been lifted. New hires may never have met their colleagues and will not necessarily be familiar with either the systems or the organisation’s premises. On returning to the office, appropriate induction processes should be followed, including ensuring that recent joiners have had sight of all relevant policies, proper systems training and opportunities to meet the colleagues and line management.
All employees will need to be clear on whether processes implemented during lockdown represent the ‘new normal’, and especially so for new recruits. Just as importantly, and however well-integrated they may appear, a conscious effort should be made to welcome new recruits and acknowledge the inevitable changes of having that ‘first day feeling’ once again.
