The enforced shift to hybrid and home-working provoked by the coronavirus pandemic was initially seen as a success story, with the easing of work from home rules having prompted a large number of flexible working requests from employees seeking to formalise the hybrid working arrangements they have come to enjoy.
However, a growing number of employers are now expressing regret over their willingness to agree to flexible working arrangements which are not proving as successful as they had originally hoped.
Although flexible/agile working has proven to be successful in many cases, many employers are experiencing problems which include:
Employees stretching the number of days they work from home beyond what was originally agreed
Employees holding unswervingly to their ‘right’ to work from home for a fixed number of days each week even when the business (and the employees’ performance) would benefit from them coming into the office more often on occasion
Offices being empty on Mondays and Fridays
A lack of ‘atmosphere’ due to the office always being below capacity
Difficulties with collaborative working and the supervision of junior employees who benefit from working closely with more experienced colleagues
Senior employees working from home and setting the wrong example.
On several occasions, we have advised clients where employees have relocated to another part of the country during lockdown and, upon being asked to return to the office, have submitted a flexible working request.
Another common problem occurs where valued, hard-working employees have their flexible working requests rejected because other less valued staff had made similar requests earlier, which had been accepted. This creates resentment, complaints of unfairness and inconsistency and, more importantly, increases the risk of losing valued staff.
There are also still many employers who are only now starting to address the issue of a return to the office and are facing multiple flexible working applications from employees across their business.
All of these issues are resulting in some employers starting to review their hybrid working policies, particularly as a recession looms, and the need for increased productivity becomes more urgent. Putting aside the risks of employees voting with their feet and finding employment elsewhere, there are certain legal considerations to bear in mind.
Where an employer has applied a blanket change, if done correctly, they should have made it clear that their agile working policy did not override employees’ employment terms, which ultimately allow the employer to require them to return to full-time work at the office or (more sensibly) to attend the office whenever directed by the employer. Otherwise, an employer may have unwittingly agreed to vary employees’ terms permanently, making it much harder to change them back.
Where changes have been agreed as part of a flexible working request, unless expressly stated otherwise, they will be treated as being a permanent change to the employee’s terms and conditions. The law does allow employers to make unilateral changes to employees’ terms and conditions in circumstances where there is a legitimate business need to do so but this often involves quite lengthy consultation and isn’t without considerable risk.
On a practical level, engaging with employees and explaining the concerns you have about existing working routines, the damaging effect they are having and the proposed changes you are seeking to implement is probably more likely to be well received by most, allowing you to then take a more direct stance with others.
Whatever approach you take to the problem, it is sure to cause friction with some employees. As the economic and cost of living crisis continues this will only harden employees’ stances while, at the same time, forcing more employers to do just the same, albeit from a different angle.
Russell Brown is a partner and head of the employment practice at Glaisyers ETL