Legal

Do we need a new approach to flexible working?

6 May 2020 By James Kidd

The coronavirus pandemic has shown that agility by design, not osmosis, is key to responding to demands for flexible working, argues James Kidd

Reading any report about trends in HR or demands from the workforce, the words ‘flexibility’ or ‘agility’ will undoubtedly appear. Many, including me, have expressed a view that the nine-to-five working pattern is becoming outdated – working a set pattern of fixed hours may soon only be applicable for those working shifts.

Since it is inevitable the workplace will become more flexible, the agility an employer should offer needs to be designed. If it is engineered reactively in response to formal flexible working requests or to attract new talent, employers risk sleepwalking into a range of legal issues. 

With recent Covid-19 developments, it has become alarmingly clear that to provide for business continuity, there needs to be an element of agile working available both for the employees’ and the employer’s benefit. Although there are risks associated with rushing into the mass implementation of working from home, for example, this could be the push business needed to take agile working seriously and is an opportunity to test drive flexible working conditions.

Ideally, prior to putting agile initiatives into place, each of these issues should be thought out and considered to ensure that the best result is being reached for both the employer and the employee. Under the current circumstances, there may not be the time to put such consideration into this, however, the external pressure provided by the Covid-19 pandemic could force the issue of agile working to the top of the priorities pile. So what do you need to consider?

Job design

Consider exactly what type of flexibility you can offer, taking culture into account, given there is a tension between agility, which focuses on an individual’s personal needs, and collegiality – as well as the employee experience being centred on what it is like to be part of a collective whole. Although a diverse workforce may require some flexibility, this needs to be balanced with the requirements of the company and the team as a whole. Instead of relying on formal flexible working requests, employers should encourage a more flexible and agile culture as a whole. By doing this, it is more likely the changes will be proactive and controlled as opposed to reactive and inconsistent. 

Types of flexibility include time, location, role and source. Consider whether it works for your company to facilitate flexible working hours or whether this would disrupt the team or provision of services. Is location a factor with your work, or can employees work from home? Whereas flexibility in relation to work hours and location may function for older, more experienced employees who are gradually winding down towards retirement, this may not be the right call for those at a more junior level who need supervision and the opportunity to learn from others. 

Flexibility in relation to role and source of work are somewhat less simple, but still options to consider in design. Role flexibility could include multi-skilling, internal/external secondments and job rotation. From the employee’s perspective, this avoids stagnation in the same role, from the employer’s perspective, this provides a flexible workforce with the ability to adapt to a variety of needs within the business. 

Source flexibility relates to where, as an employer, you source your workforce from. To respond to the need for flexibility, many businesses reject permanent employees and instead rely on freelancers, agency workers and even secondees. 

Legal risk

If your workforce can work from anywhere and are not restricted to normal office hours, you run the risk of fostering an ‘always on’ culture, as opposed to a flexible one. There are multiple associated risks of a failure to address the ‘always on’ culture, such as an increase in mental health issues and bullying and harassment or indirect discrimination arising from the type of agility favouring those of one protected characteristic over another (for example, the demand of older workers for less hours balanced against the demand of parents for agility in how/when normal hours are worked).

Changes 

Somewhat oxymoronically, to foster a flexible and agile culture within the workplace, you will need to have strict policies in place to not only ensure sufficient output, but also to regulate the hours employees are working and to attempt to impose clear lines between work and home life to reduce stress. 

Infrastructure is another consideration: if employees are to work regularly from home, will you provide laptops or other equipment to facilitate this or will it be the employee’s responsibility. 

Before putting into place agile initiatives, each of these issues should be thought out and considered to ensure that the best result is being reached for both the employer and the employee. Reaching this balance is tricky, but it can be done and the results can be spectacular. 

James Kidd is a partner at Mills & Reeve

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