The pandemic forced employers and employees alike to adapt to agile working overnight and, to the surprise of many, it has worked. Now that we are hopefully coming out the other side, many businesses have found positives from people working from home. So much so it has changed the way we will work forever. Many employers are looking to embrace agile working on a permanent basis. So what changes need to be considered to do this?
Place of work
Normally when you change an employee’s place of work you would vary their contract. When the pandemic struck not many employers did this because everyone was responding to Covid. Also, no one anticipated that the pandemic and working from home would last this long.
Most employees’ place of work clause states the office as their location. If you wish to implement agile working on a permanent basis, this needs amending to the employee’s home address or wherever they choose to work from. Agile working could be anywhere like a café or other premises, while working from home is just that.
Hours of work
Will you require employees to work their contracted hours of 9am to 5pm from home, or will you give them flexibility as to how they work their contracted hours? If so, this clause will also need amending.
Policies and procedures
You will need to carry out a review of your policies and procedures and amend them to allow for agile working. For example, to allow for grievance and disciplinary hearings and internal meetings to generally take place via video call.
It’s all very well saying your employees can work from home, but you need to make sure they have the facilities to do that. Employers I have been advising have said staff can work from home conditional on a proven broadband speed so they can get their work done and attend meetings remotely. This is at the employee’s own cost, not the employer’s. If their broadband isn’t quick enough then they reserve the right to cancel the agile working agreement and the employee will revert back to being required to work in the office.
Having access to employees’ homes
It is important that you include a clause in employees’ contracts that allows you access to their homes to make sure it is suitable for home working from a health and safety point of view. As an employer you have a responsibility to ensure the safe working environment of your employees, such as carrying out maintenance on any electrical equipment provided to the employee. This is in addition to ensuring your employees workspace is set up in a suitable way, such as having an appropriate desk and chair.
Ensuring data protection and confidentiality
Pre-pandemic employees were normally prohibited from sending confidential information to their home computer or taking confidential documents out of the office. Clearly with home working that can’t be the case, but it is important to strengthen confidentiality clauses in contracts of employment by ensuring processes are in place to deal with this information in the right way. More stringent measures will be required, such as the use of encryption and password protection of documents. Employers moving to permanent agile working have therefore either sought to include contractual provisions covering this in employee’s contracts of employment or have introduced an agile working policy covering this.
What is the future?
Most employers I have dealt with are embracing the idea of agile working, and for many coming into the office five days a week is a thing of the past. Many have carried out surveys of their employees and found a majority don’t want to come back into the office full time.
Working from home has addressed the work-life balance and, to their credit, businesses have embraced this as long as the work is getting done. Will we ever return to what was considered normal before? I don’t think we will, and I don’t expect many office workers will have to go back into the office every day again.
Of course, if restrictions are lifted entirely on 21 June and employers do want their employees back in full time, it will be down to the employee to request to work on an agile basis and ask their employer to agree to vary their contract. However, there will be no obligation on the employer to do so.
Katie Maguire is an employment partner at national law firm Devonshires