Personal and legal learnings from lockdown

I am writing this blog fresh off the back of genuine excitement at the countdown to the BBC’s screening of David Bowie’s iconic 2000 Glastonbury performance, writes David Browne, Partner at Shakespeare Martineau LLP. With 15 minutes to go before the “live” transmission of the performance I almost duped myself into believing this was all new and I was not about to watch a 20 year-old performance, readily available on the internet, of a musician who died in 2016. I have also digested long forgotten football matches from decades-old tournaments as though they never previously existed. We live in very strange times.

Bowie’s death in January 2016 ushered in a year which is much maligned for many reasons. However, held up against what 2020 has offered us to date, 2016 looks like vintage stuff. It really is impossible to overstate what has happened over the last few months and the legacy it has created for us all.

As lawyers, we have had the frustration of learning new laws at the same speed as our clients. I have gone from arguably never using the word “furlough” in my life to being an expert on the issue in the space of hours, then weeks, and now months. And in a few months’ time I hope I never have to advise on it again. However, I expect that we will be seeing a huge amount of litigation coming out of the use of furlough in the next 12 months and beyond. It will be particularly interesting to see Tribunals’ approach to redundancy dismissals for staff who were not furloughed and where furlough was not considered as an option. I suspect that where furlough was not even considered as an option such dismissals may be found to be unfair. 

We have all had to get to grips with virtual meetings too. Gone seem to be the days where a ‘phone call would suffice and “Zoom fatigue” has become a genuine occupational hazard. My cats have declared themselves celebrities and insist on cameo appearances on various conferences with clients and have contributed to at least one judicial mediation. All joking aside, I expect that virtual meetings will be here to stay and it is important that time is taken by participants to prepare for them appropriately, including making them feline free. This is particularly the case where formal meetings are convened under employers’ disciplinary and grievance processes or as part of a redundancy consultation exercise. In respect of the latter we would expect that some employers will need to consult in a virtual world, on an individual or collective basis, or both. Employers may therefore want to consider if training on the use of virtual meetings is appropriate and, given how exhausting consultation and virtual meetings can be, to convene more frequent but shorter meetings.

I have also noticed that my colleagues and I are having a more open dialogue about our mental health and the impact lockdown has had on it. Of course, employers up and down the country have, over the last few years, made great strides in encouraging employees to be open about mental health issues, but sadly there remains a stigma attached to letting people know we are not okay, and many employees will continue to suffer in silence. There will be many, many people who are struggling with their mental health due to the effects of lockdown and the persistent threat associated with COVID-19. Friends who I regard as robust are joking that they are becoming agoraphobic and I can tell that the tongue is not firmly in their cheek when they say it. People are scared. I am reminded of the character of Brooks Hatlen in The Shawshank Redemption and how he could not cope with life in the outside world following release from his long incarceration.

Many people will not want life to return to normal; they don’t feel safe. The last thing they will want to do is be forced back into the workplace, and this may be a real issue for employers. We know of course that employees have protection from detriment and/or dismissal arising from raising health and safety concerns and I expect most universities will have at least some staff who refuse to come back onto campus because of perceived risks to their health and safety or those they live with. Employers will be expected to tread carefully in not penalising employees in such circumstances, although ultimately they may find themselves in circumstances whereby they consider disciplinary action or withhold pay. The reasonableness of that approach will of course be very fact specific. However, there is an issue far wider than legal risk in this regard and it is something we have told our clients on many occasions during the pandemic; your workforce will remember how you have treated them through this crisis, and it is an opportunity to create a positive legacy or to torpedo morale on an unprecedented level. Not all employers are going to get it right.

Connected to this, and something which we have seen on a much wider scale than the sphere of employment, but these unprecedented times have brought out the very best and the very worst in people. I was very moved by the Thursday clap for the NHS which marked the early stages of lockdown; I have been horrified by the reckless and selfish behaviour of people in their thousands attending illegal raves and other similar events. Employers are experiencing this spectrum of behaviours on a much more localised level. I am delighted by how much my colleagues have all worked together, supporting one another and genuinely caring about how one another are doing. Regrettably I have also had to advise university clients about staff who refuse to take on additional teaching responsibilities to share the burden with colleagues in such unusual circumstances. Worst still, I have seen reasonable managerial requests being met with spurious allegations of discrimination and the lodging of grievances.

You will want to ensure that your staff are all pulling in the same direction and truly selfish behaviour will stand out a mile. In the same way that employees will remember how they have been treated during this crisis I expect employers will remember those employees who have proved themselves not to be team players and may ask themselves if their futures lie elsewhere.    

Of course, none of us can say for certain what the future holds. Our firm’s CEO has referred to the “new abnormal” and I think that sums up beautifully what is in store for all of us. Things cannot go back to how they were, although already I fear that some people are forgetting that. And that takes me back to Bowie again. In the wake of the US terrorist attacks he released a track called “Sunday” and the lyrics sum up how I feel about life after lockdown:

For in truth, it’s the beginning of an end

And nothing has changed

And everything has changed

David Browne, Partner

Shakespeare Martineau LLP