The ability to work in a safe environment is a fundamental expectation that underpins any employment relationship. So, when an employee believes that an aspect of the workplace is potentially dangerous, they may be reluctant to attend until such concerns are properly addressed.

While the issue of employees refusing to work on safety grounds isn’t new –  it’s one that many employers will have encountered during the pandemic – these sorts of issues could soon resurface, and it’s important to be prepared.

Our senior solicitor, Charlotte Morris, offers the legal insight into what employee relations (ER) hurdles the property sector may encounter.

1. Welcoming back returning staff from home-working

The property industry is well accustomed to managing workplace H&S risks and conducting their own assessments and/or utilising the skills of external H&S companies to assist in on-site risk management.

If an employee does not want to return, despite all measures in place, employers should investigate with these individuals what their specific concerns are, and consider ways of addressing them.

However, this need not mean employees’ requests to continue working from home should be accommodated. In the property industry specifically, not only are construction projects still potentially behind schedule – due to site closures at the start of the pandemic – but an exceptionally wet year and supplier issues could also have created unexpected delays. Companies therefore need to be operating efficiently and effectively to capitalise on consumer demand, and to make up for any lost time.

There are multiple avenues employers can explore to reassure and encourage employees back safely or potentially consider the termination of their contract if a return to work is not possible.

These circumstances will be case-specific depending on the employee’s reasons for not wanting to return, but we encourage clients to discuss such predicaments with their legal adviser who can explain the available options alongside the associated risks. We can also work with companies to help you plan a suitable way forward.

2. Innovation and development

As a result of the pandemic most businesses were required to change their working practices, for some this presented many unexpected benefits.

With site visits put on hold, companies relied more heavily on alternative marketing tools – such as social media – to showcase projects, and this enabled them to reach a wider audience. This created a greater reliance upon and desire for video viewings and tours. In-person site visits have now returned too, which means businesses now need to decide whether to revert back to pre-pandemic and the more ‘traditional’ marketing activities, to continue focussing on digital marketing and sales strategies or else look to utilise a combination of the two.

This innovation and digitisation impact employees too because they need to adapt and evolve with the organisation to get the best out of the opportunities, and engage with prospective customers in new ways. This can require additional skillsets which some employees may not have or else may be reluctant to explore.

Employers should therefore consider providing focussed training to staff to help them best manage these changes and utilise the opportunities. Of course, if there are employees not willing to engage or who are not performing, then careful consideration should be given to performance management options, or the consideration of restructuring exercises to help place the right skills, with the right roles.

3. Performance

Given the impact of Covid-19 on the property industry – and the tighter margins construction projects are having to work under – it is all the more important that employees are operating at their best.

Advice should be taken regarding your options for managing poor-performing employees, however, consideration should also be given to the motivation of staff to help maintain productivity and efficiency.

Salaries and bonuses are often looked to as incentives in the property industry, however, when the cost of materials is rising and projects are delayed, alternative ways to engage teams should also be considered – for example additional days’ leave upon project completions.

Communication is key in this instance. Open dialogue with staff and contractors can foster collaboration, drive efficiency, and achieve employee ‘buy-in’, all while maintaining high standards of service delivery.

4. Difficulties in recruiting

The pandemic has caused some employees to be reluctant to switch organisations and try to maintain some form of status quo – resulting in a job application shortage.

The increase in popularity of home-based work, which is attractive to many employees, is not always conducive to the property industry either.

Therefore, employers seeking to attract the best candidates need to look outside the box in terms of what they can offer to prospective recruits. For example, an increase in annual leave entitlement, flexibility in hours (dependent upon the job role) or additional training and the opportunity for career progression.

For individuals who are money-motivated, rather than simply offering greater salaries, the use of completion bonuses or sales bonuses can be useful tools in managing cashflow while attracting and motivating employees.

5. Mergers, acquisitions and insolvency

Unfortunately, the increased cost of materials, delays in getting deliveries and the availability of skilled tradesmen will result in some casualties in the property industry. This can lead not only to the possibility of businesses entering administration or liquidation, but the opportunity for some larger players to acquire struggling organisations. This presents both opportunities and threats and, from an employment perspective, it is necessary to consider the potential implications of any takeovers.

Depending on the type of acquisition, the TUPE Regulations may apply and failure to inform – and consult with – all affected employees could result in claims for protective awards of up to 13 weeks pay per employee. Liability in TUPE scenarios can be joint and severable so we recommend you take advice to ensure there is compliance with legal obligations as either the transferor or transferee company.

Additionally, consideration should also be given to the possibility of redundancies in the above situations and the potential need to pool those in similar, interchangeable roles following a transfer. This can create legal and ER issues, so timely advice is recommended to help decision makers understand their options and manage any risks.