As I return from holiday, I have been reflecting on what 2021 will bring to my employment practice. The rise of Covid-19 and subsequent lockdowns posed a particular challenge for employment lawyers. As we closed our premises and went home, and so did our clients, there followed a flurry of desperate phone calls from employers and employees alike. Do employees get paid during lockdown? Should sick leave be used? What do we do with unused wage subsidy? Can I make my staff redundant? The landscape changed daily and sometimes hourly.
As lawyers we are expected to know the answers to all the questions, and so not knowing added a layer of difficulty to an already difficult time. I set to analysing legal issues in a way I hadn’t had to in some time, and thankfully greatly benefitted from the wisdom of my colleagues, and the information sharing that occurred.
Those calls faded away, to be replaced by numerous redundancy processes and claims, and delays to access to justice, with the Mediation Service and Employment Relations Authority inundated with claims (and a “covid tail” still to be dealt with). Then disciplinary processes picked up again, as workplace behaviour began to show the toll, with erratic and aggressive behaviour shown by employers, employers, and, regrettably, other lawyers and advocates. We all needed a break.
So, what will 2021 bring for employees and employees?
Here are my thoughts:
1. I hate to be a doomsayer, but I think there is another wave of redundancies to come. Wage subsidies seem unlikely to be repeated, and more businesses will fail. For those industries and entities who made it through, and are working through their own “pivot” to the new way of doing things, restructuring seems likely.
2. With that comes the inevitable claims. Covid-19 has brought out the best and worst in people, and while some workplaces have risen to the occasion, others decidedly have not.
3. There are legal issues being determined through the courts. If there was no work for an employee due to lockdown should they have been paid or not? If an employee wouldn’t agree to a pay cut to 80%, could they be made redundant? Could the pay cut be driven through? These cases are working their way through the appeals system and the answers will impact on practice and other claims in the system.
4. Organisations are seeking to prepare for future lockdowns, by the inclusion of “covid clauses” in employment agreements, intended to allow employers to temporarily stand employees down in lockdown scenarios. Inevitably there will be case law about these if put to the test.
5. And then there is the personal cost of it all. The impacts of joblessness, stress and anxiety continue to rebound. Workplaces are more flexible, but unemployment is rising. Paradoxically the economy is recovering and many industries are hiring. But there are likely to be long-term consequences of Covid-19 which will need to be grappled with.
Despite all of this, I am optimistic. Good people and good organisations shone during 2020. They will continue to do so in 2021. We are so protected here in New Zealand; others have it so much tougher. And throughout this my practice will continue to challenge and be a source of satisfaction and blessing.
Happy New Year!
If you need advice about a restructuring, want to review your employment agreement(s), or have any questions on any employment law issue, contact me or any one of my great team at Gaze Burt: