The proposed Employment Bill has been in the pipeline for some time, being first announced in 2019. One of the fundamental elements of the bill is to make flexible working the default position, effectively flipping the current situation in which employees only have a right to request flexible work.
Over the last 18 months, the bill was placed on the back burner because of the Covid-19 pandemic. However, the Labour party are now pushing for it to be at the forefront of the employment law agenda.
The pandemic has forced both businesses and their employees to work differently, changing the working landscape considerably. Unsurprisingly, many more people (including business owners) now want the option to work from home, at least for part of their working week.
The Office for National Statistics (ONS) has reported that the number of people working from home in 2020 increased to 37 per cent, up from 27 per cent in 2019. Further, job adverts referring to homeworking are three times above what was recorded in February 2020, suggesting that many businesses are going to adopt permanent hybrid working arrangements for their office-based staff.
This trend is likely to encourage the implementation of the bill and therefore flexible working as the default position. It is therefore important that organisations consider what this means for them, and how they will navigate the potential difficulties this presents.
When speaking with clients, I advise them to first consider how flexible working fits with their business operations currently. While it is important to embrace the changes on the horizon regarding flexible working, there has to be a balance with ensuring businesses continue to run efficiently and effectively as there is no one-size-fits-all approach.
Employees are likely to push for flexible arrangements that suit their lifestyle, or give them a better work-life balance, and while a positive attitude from employers is key when considering these requests, compromise between the parties is essential. There may also be times where flexible working simply cannot be accommodated, and others where the employer has no justification for not permitting it.
While my experience is that most employees have, at a minimum, wanted to return to office- based working on a part-time basis, there are still employees that are reluctant to return to the workplace.
This has been for a number of reasons, but health and safety concerns tend to be the most likely due to the pandemic. Some employees have raised issues with working alongside colleagues who are not vaccinated. Unsurprisingly, employees who are vulnerable or pregnant have also raised concerns about returning to the workspace. More generally, employees may have strong views about the policy decisions of the employer; for example, lateral flow testing and the wearing of masks. These latter issues have been raised with me regularly.
I always reassure clients that juggling government guidance and regulations will be difficult and there will always be employees to challenge policy decisions made. As long as employers have well-thought-out policies and procedures in place to protect staff, and they have justifiable reasons for requesting employees to return to the workspace, they should not be afraid to request them to do so.
When approaching the concept of flexible working, there are certain considerations and steps that are recommended for businesses to take:
- Approach flexible working with a can-do attitude. Remember that currently, you can always trial an arrangement and if it does not work, then there is no obligation to make it permanent.
- Forward thinking is key. It is important that time is taken to consider how the business can effectively run if all or the majority of its staff had some type of flexible working arrangement. If consideration is not given from the outset, there is a risk that decisions will be made without thought for the business as a whole.
- Applying a consistent approach to dealing with flexible working is crucial to minimising the risk of discrimination claims. If requests will not be dealt with centrally, managers should be given training and guidance to ensure that the business is operating as one.
- Be reasonable. If your employees can work successfully under flexible arrangements, this could be a positive for a business and could improve morale and productivity.
- Don’t forget mental health. Out of sight, out of mind is a concept all too familiar to many. The pandemic has certainly seen businesses adapt to virtual means of communication and this should not lapse.
- Where necessary, undertake risk assessments. These may be in the workplace or at the employees’ home but either way, the employer has a responsibility to ensure a safe working environment for all its staff.
- Put policies in place that deal with all of the above. This way employees will know where they stand and be reassured that everyone is being treated equally. If adopting hybrid working arrangements, having a specific policy that sets out how this works is advisable.
The way in which people work has drastically changed over the past two years. With offices being redesigned, the increase in remote virtual meetings and many businesses undergoing structural changes, it’s more important now than ever before for employers to demonstrate that they are innovative and forward-thinking in the face of continual change, while helping with the retention of high morale, motivation, and good mental health in the workplace.
Amanda Badley is a partner at leading independent law firm BHW