In an increasingly digitised and globalised world, there is a greater focus on workforces being adaptable, efficient and ultimately effective for each business's commercial pressures and needs. Customers and stakeholders expect quicker responses at times that suit them. Only recently, Asos, the UK's largest independent online and fashion retailer, announced the launch of same-day delivery to combat the impatience of online shoppers.
To fulfil those demands, companies across all sectors are necessarily having to ensure their workforces are sufficiently agile. One potential strategy is for employers to embrace the prospect of flexible working, ensuring that both customers and employees are engaged and satisfied. But employers must also be appropriately conscious of the legal and operational issues that arise when inviting and dealing with flexible working requests.
Employment tribunals are regularly told, and accept, that flexible working positively affects employees' job fulfilment, wellbeing and, consequently, their productivity. Indeed, a plethora of research supports that view.
Engagement is increasingly recognised as an important part of any HR programme, particularly for businesses employing a large population of millennials who place a greater importance on purpose, job satisfaction and ‘making an impact’ in the workplace.
But the history of flexible working is enshrined in employment legislation designed to provide workers with a solution to a problem, most commonly arising from care needs or disability. The Flexible Working Regulations 2014 amend sub-section 80F-80I of the Employment Rights Act 1996 and set out the bases and process by which employers have a duty to consider flexible working requests.
The duty under the regulations remains ostensibly limited to employees who have been continuously employed for a period of at least 26 weeks, and compensation is limited to eight weeks' pay if not properly dealt with. However, failure to grant flexible working pursued by an employee as a reasonable adjustment, or arising from care needs, is a potential breach of a further duty under the Equality Act 2010, even at the point of recruitment. Any such breach may give rise to injury to feelings awards and, theoretically, uncapped compensation.
There are three key benefits to employers of exploring and granting flexible working:
- meeting customer demands with a flexible and agile workforce;
- increasing employee engagement and productivity; and
- put simply, because it might be illegal not to.
It is plain that, for some roles, flexible working simply isn’t feasible. In many sectors, there is an increasing employee-led desire to work from home and there can be a lack of appreciation of the operational difficulty that can present. This is particularly so if an organisation does not have the digital resources to neutralise any issues that can arise from limited face-to-face contact.
Employers can often be rightly concerned about monitoring output and any distractions that might come with home working or working in isolation. This can particularly be the case with workers with young families, who may be loath to pay for childcare when they are already at home.
Employers are entitled to ensure that any flexible working arrangements are commercially effective, and there are specified business reasons within the Employment Rights Act on which applications can be turned down. Furthermore, taking steps to ensure home workers' time is devoted properly to work and not childcare, for example, is likely to be justified.
However, practically managing difficult or poor-performing employees who feel entitled to a particular work pattern, despite any genuine business concerns, can become a risky and complex employee relations issue. Employers should ensure they are properly equipped to deal with the pitfalls that flexible working might bring before they consider embarking on any campaign to change the culture and invite applications.
Louise Bloomfield is a partner and Sam Proffitt a solicitor in the employment and pensions group at DAC Beachcroft