Posted by Tim Gofton, Senior Associate
Implementing more permanent flexible working after Covid-19
Matt Hancock has said he would consider making it a legal requirement for all staff to be able to work from home. This is unlikely to happen as it would be too restrictive for the economy. Yet as workplaces are starting to open up again, employers report staff wanting to retain some flexibility they had in lockdown.
Some employers see flexible working as an opportunity to attract talent especially in sectors where competition for talent is strong or where recruitment is hard. But is continued flexible working as simple as allowing staff to continue to work from home? On the face of it yes, but there’s more to flexible working and managing a remote workforce than first meets the eye.
What other types of flexible working are there apart from home working?
Homeworking doesn’t work for all sectors of the economy or types of employer. Other types of flexible working include:
Traditionally associated with the public sector and insurance companies, flexi-time allows employers to cover key office hours whilst giving staff flexibility around when they work non-key hours.
The total number of hours to be worked over a year is fixed but there is variation over the year in the length of the working day and week. They’re often used to accommodate variations in demand in an employer’s business but can also provide staff some flexibility outside times of high demand.
Essentially the reallocation of work full-time hours but over fewer days, for example, longer hours Monday to Thursday with Friday, or every other Friday, off.
How should employers consider staff requests to work flexibly after Covid-19?
If you’re going to leave it to staff to make applications to work flexibly after the lockdown, then (subject to certain eligibility criteria) you have a legal obligation to follow the flexible working request statutory scheme. The statutory scheme process can be time consuming and rigid but it’s unlikely to be done away with any time soon.
Where you have large numbers of staff wanting to work flexibly you could put in place arrangements with staff to simplify the process. In areas of the business where you know a homeworking request, for example, will work, a simplified application process could save time. You would have to run the full statutory process if an employee wanted it but many staff may opt for a simpler process. In less straightforward or contentious situations you should follow the full statutory process to reduce risk.
If employers are going to take the lead in moving staff to more permanent flexible working, they will normally need to consult with affected staff. Depending on the numbers of staff affected, collective consultation may be required. Depending on individual circumstances enforced flexi-working without good reason and proper consultation could also be a breach of the employment contract.
How do you manage a more flexible workforce?
Unfortunately, some staff feel if they are out of sight they are out of mind. This can lead to increased levels of poor performance or misconduct. It’s important that if you move to a more permanent flexible workforce that you consider how you are going to manage issues such as supervision and performance reviews. Clarity of instruction in relation to work to be done is key; staff will have less opportunity remotely to clarify what is required of them than they would in an office by stopping by their manager’s desk to ask questions.
It will be especially important to put in place processes to monitor work and productivity where it’s not easily identifiable from other sources, such as computer records. The onus will still be on employers to prove a fair reason for dismissal in misconduct or poor performance cases. This may be harder to do in a remote environment unless you have clear systems of monitoring and communications in place.
Will flexible working affect your contracts of employment, policies and procedures?
You will need to document any changes to the employment contract, such as the workplace or a change in hours. You may decide this is best done by a variation letter if you don’t want to issue a new contract. Changes to key terms of employment must be set out in writing at the earliest opportunity and, in any event, not later than one month after the change in question.
A big issue for employers is how to adapt policies and procedures. Your existing policies and procedures will likely be written from the perspective of office working. There needs to be a clear message running through your policies about how you expect your staff to behave towards others and what is expected of them if they work from home. Policies and procedures should not normally be contractual but Employment Tribunals pay attention to them. Knowledge of and a failure to follow proper homeworking polices may help establish a fair dismissal if ever challenged by a member of staff.
If you are thinking about moving to more permanent flexible working, adapting your HR documents will take thought and time which should start now.
Is homeworking right for all staff and organisations?
Not always. If staff don’t go into the office occasionally this could have a real impact on an organisation’s culture. Social interaction with colleagues often results in greater productivity.
Remote working may also have negative health and other personal issues for staff. Lack of social interaction may also have mental health consequences for some staff, triggering disability discrimination claims and obligations. Some staff may also see the office as a safe space away from turbulent home lives, including domestic abuse.
In short, flexible working is going to become more normal – but it’s not for all employers or staff.
If you have any questions about adopting flexible working after the Covid-19 pandemic, please get in touch with our Employment & HR team:
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