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January 15th, 2021 | Sterling

HR Compliance 2021: What Employers should Know

As we reflect on a year that none of us are likely to forget, it’s clear that employers have had to adapt to an ever-evolving hiring landscape. In this post we look at what has led to these changes, how these elements have impacted hiring, and the compliance considerations hiring organisations must be aware of.

In a recent webinar ‘HR Compliance 2021: Are you ready?‘ Tim Stokes, Sterling’s Head of EMEA Sales, was joined by guest experts from Bird & Bird LLP, as they looked back on the key events and trends of the year, and into the future, helping you better prepare and navigate the way for 2021.

An Evolving Hiring Landscape

In what has been an eventful and challenging year for employers, we’ve seen the resumption of government supported initiatives such as the furlough schemes in the United Kingdom, helping to support organisations and employees through these trying times. A series of lockdown restrictions and tier systems have been implemented in order to further combat the spread of the Covid-19 virus. All of which, have been accompanied by economic peaks and troughs. Not only that, but Covid-19 also led to a seismic shift in remote work, with many organisations seemingly transitioning to a work from home approach overnight – perhaps accelerating and providing a glimpse into the future of work. The Office for National Statistics reported that in April 2020, within the UK, 46.6% of people in employment worked from home, and of this number 86% did so as a result of the Covid-19 pandemic.

Even before 2020, a number of general trends and changes to the workforce were taking place, particularly in relation to an increase in the number of contract and gig workers, as employers continue to seek more flexible working arrangements. In addition, our screening trends research highlighted continued growth in the search for talent overseas, a trend which is likely to continue into the year ahead, as virtual-first, remote working environments are further adopted by many employers across the world – providing the flexibility to hire and access a global talent pool.  Employers should be aware that they’ll need to account for employment, immigration, and tax considerations. Post-Brexit it’s also vital that employers take the time to understand the new immigration system which went on live on the 1 December, and the considerations around this. As strange as 2020 may have been, there are still plenty of positive signs ahead, with multiple vaccines now approved and the rollout to priority cohorts underway. In addition, the global movement against racism has reopened the conversation on diversity, leading to businesses looking internally and developing more diverse hiring programmes. This optimism was broadly shared with our audience in our webinar ‘HR Compliance 2021: Are you ready?‘ with 67% agreeing that we’re on the road to recovery.

Key Compliance Considerations for 2021

Here are some of the compliance considerations that employers are currently dealing with, and should continue to watch as we look ahead into 2021, particularly around Covid-19 and data.

When it comes to Covid-19, employers will need to tread with caution, particularly around the management of their staff and their data, as the impact of getting it wrong can be extremely costly. The ramifications of which can lead to rumours circulating amongst staff, and potential uninvited attention from the media. This can result in a rise of employee or consumer activism, which has the potential to damage employer brand and negatively impact recruiting new talent and retaining staff. Your organisation might want to consider what employee data is recorded and whether you have sufficient purpose to keep this information along with accuracy in line with data laws. For example, should you record temperature readings? Perhaps it may be better to send an individual home if they have a high reading, rather than retain this information. Alternatively, a business could record an employee’s Covid-19 status, but that has the potential to change in a matter of days, therefore limiting the purpose of recording the data. As our guests in the webinar mention, it’s important your organisation is aware of what is legally permissible in the country in which it operates. Readers may wish to download Bird & Bird’s Covid-19 Data Protection Guidance to access country specific insights and learn more on this. For example, within the United Kingdom it is permitted to ask employees about their symptoms, however, in other countries such as France and the Netherlands it is not. In order to set expectations, it’s important your organisation has the relevant processes and procedures in place that take Covid-19 into account. In the transition to working from home, the HR team is best placed to notice any potential tensions between staff reintegrating as a result of a return from furlough or taking on additional duties. Bird & Bird noted an increase in these tensions and differences in employee responses. Some workers were reluctant to go back to work from furlough, whereas others were keen to return. Getting a sense of how the workforce feels, may help to understand and manage efficiencies as well helping to avoid any whistleblowing or bullying, which is important to stay on top of.

New Ways of Working

In this new world of remote working, employers are exploring new monitoring solutions to help them protect their intellectual property, data, and monitor employee productivity. This is a particular concern within the financial services sector. Whilst solutions for this exist, it’s important your organisation considers the compliance considerations around this, in addition to putting your employees mind at ease. These forms of monitoring might come in the shape of tracking emails sent and received, keeping an eye on periods of inactivity on messaging tools such as Teams, or having periodic webcam shots to check someone is at their desk. Some organisations are even utilising health data and wearable devices to measure heart rate and employee health. Of course, it’s important to highlight that you must first consider the data protection obligations, such as whether it’s purposeful to have this data. It’s important before you opt to have a monitoring solution that you understand the underlying concerns and purpose – what exactly are you trying to achieve? Perhaps it’s to increase efficiencies or security concerns. Then consider how the monitoring solution will address those concerns. If there is a less intrusive way of achieving the objective that is lower risk, this may be the preferable option, particularly from an employment and privacy law perspective. To put your employee’s minds at ease, you should be transparent, explain what you are doing, and have policies and procedures in place to reduce anxieties, therefore reducing the risk of complaints. From a compliance standpoint, consider conducting a risk assessment and having the necessary documentation in place, which in turn will help to reduce the risks.

2020 may have given us overwhelming food for thought when it comes to the shifting employment landscape, but our latest webinar will help navigate the way. For a detailed round-up of the current compliance considerations and what you can look out for in 2021, catch-up with our webinar guests at Bird & Bird alongside Tim Stokes.

This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.