The Great Return? – Part 2

Considerations for returning to the office following the easing of lockdown restrictions

Part 2: Flexible working – practical considerations and pitfalls

Introduction

In our bulletin last week, we introduced our new series of articles to run over 4 consecutive weeks.  These are designed to assist with particular challenges faced by employers in relation to staff returning to work following a period of time on furlough or working from home.

This week we are taking a look at flexible working.  This has existed in the UK as a legal concept since 2003.  Employers had historically often been reluctant to offer or fully utilise the benefits of flexible working, until now….

Legal position

Since 30 June 2014, employees with at least 26 weeks’ continuous service have had the right to request a change to their working pattern.  This can include a request to change their hours of work, the number of hours worked and their place of work.

It is necessary for employers to deal with the request reasonably and to notify the employee of the outcome within a 3 month period, and if the decision is not to accept then to provide one or more of the eight available reasons for not doing so.

What is flexible working?

Flexible working can mean a variety of different working patterns.  It includes part-time working, job sharing, home-working, compressed working hours, term-time working arrangements, sabbaticals and career breaks.  Now that many people have experienced a degree of flexible working over the last 12 months, are they likely to want to go back to their previous style of work?  Flexible working suits in particular parents (albeit typically women) who are trying to juggle childcare, school hours and long school holidays with a successful career.  The ability to work from home and flexi-hours in such cases brings many benefits and can lead to a happier environment all round.

Previously, the stereotypical view was that employees who worked flexibly lacked ambition and were not necessarily contributing to the success of the business to the best of their ability.  Now, however, employers have at very short notice, with the restrictions brought about by the pandemic, been forced to adapt and we can see the benefits of this from both sides.  Lockdown has shown that productivity and efficiency rates can be maintained whilst employees work remotely.

For employers, costs can be saved on office space and associated utility bills; for employees, work-life balance has improved, and less time and money is spent on travelling and childcare arrangements.  There are of course downsides too, but with the greatest respect to our readers, we will leave that for another time.

Practical tips

• The success of a request for flexible working will depend on how the contract has been drafted.  In general, clauses that are more widely worded and clauses that are detrimental to the employee are less likely to be enforceable.  For example, an increase in hours is unlikely to be enforceable.  Obviously employees are likely to agree to changes if they are to their personal benefit.
• Any ambiguity is decided in favour of the employee.
• Employers are encouraged to start with a positive mindset, so a request for flexible working should only be refused for clear business reasons.
• Consider whether there will be a detrimental impact on quality or performance (was there a detrimental effect during lockdown)?
• Large businesses are likely to receive a high number of requests, in which case it is important to ensure that they are dealt with fairly on a first come, first served basis, with no risk of discrimination.
• Consider your policies and ensure that all requests are dealt with in line with these.  It may be necessary to update policies in line with current attitudes and expectations (our article next week will focus on changes to policies and procedures).
• Consider any alternatives to the request initially made and whether it is possible to compromise.

Changes to an employee’s contract

Fundamental changes to an employee’s contract cannot be pushed through unilaterally.  If you wish to vary the terms and conditions of employment, it is important to communicate this with the employee and to obtain their consent.  This should be done in the form of a letter amending their contract, or a new contract of employment altogether.

Any objections must be considered on a case by case basis.  If you want to push through contractual changes, it is necessary to have valid business reasons for doing so.

Process

Remember to use our step by step process set out in last week’s article:

1. communicate with the employee regarding proposed changes;
2. make a proposal with regard to your preferred working structure;
3. consider whether the change will affect everyone, or just individual roles;
4. update managers on changes, so they are able to deal with questions which arise;
5. consult and obtain consent from employees in relation to changes to terms and conditions.

For the time being, the Government’s position is that we should continue to work from home wherever we can.  Who knows how long, in practice, this will last…perhaps it will become the new norm, with a happier but no less efficient flexible workforce?