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Flexible Working Post COVID-19, No Going Back
The COVID-19 pandemic has meant that there has been no choice for businesses but to become flexible. What will happen when the pandemic is over? When the lockdown is eased and we return to office working, what will this look like? Employees may want change to how they work. Who has missed commuting? Words rarely spoken.
Interestingly, when we look at the UK’s most proudly agile businesses, their agile working practices were born out of challenging times and markets. These businesses will champion the upsides of being agile including being able to adapt in a changing world allowing competitive advantage and growth.
Attitudes towards flexible working in many businesses has varied though in the pre COVID-19 days. There may have been reasons for this – technology blockages, lack of trust or a reliance on presenteeism. This got in the way of not only promoting family friendly policies but encouraging a work life balance generally and went to the very heart of workplace culture.
Flexible working makes sense if it empowers employees by encouraging independent thinking instead of being micromanaged. Happier employees are likely to be more productive and when recruiting, being able to offer flexible working could be an attractive incentive to get the best people on board.
Flexible working looks different to different people. It could mean changing start and finish times or doing your working hours over fewer days. It could be working part-time or working from home. It could be a job share. Flexible working is a legal right which applies to all employees who have worked for the same employer for at least 26 weeks provided that they have not made any other flexible working requests in the previous 12 months. Any change agreed could be temporary or permanent or subject to a trial period and employers must make decisions about flexible working requests within 3 months.
How far does the right to work flexibly go though?
It is not an automatic right to work flexibly. Requests to work flexibly can be refused by employers where this is reasonable. In other words, there needs to be business logic behind turning down a flexible working request. This could include reasons such as:
– additional costs for the business;
– concerns about a dip in performance and/or the quality and standard of the work;
– being unable to recruit additional staff;
– impact on customer demand;
– difficulties around reorganising work amongst existing staff.
It is too easy for employers to make vague remarks along the lines that flexible working is too expensive or that there are already too many other employees working flexibly. Treating employees differently carries risk in itself and could lead to discrimination claims. Consistency is key and all requests should be treated in the same way.
Flexible working is not just for parents, carers and women returning from maternity leave. Employees do not need to give reasons for making a request. There will also be other options open to parents and carers such as parental leave and time off to care for dependents.
Employers have had to adapt during the pandemic. The means of working flexibly are there now in many companies and investments in technology have been made.
Employers who have set up remote working systems which have functioned effectively are going to find it more difficult now to reject flexible working requests out of hand linking this to a logical business rationale.
Employers should get ready for the new normal and have guidelines and policies in place to tackle potentially difficult issues. These policies could cover how to handle a dip in productivity when an employee is working from home, the security measures that need to be in place to comply with data protection requirements and what, if any, expenses can employees claim for setting up an at-home work space?
Change is afoot and this in itself requires flexible thinking and being open to new working methods. It is the new way.
For advice on employment matters, please contact Rhian Radia.
Rhian Radia joined Bishop & Sewell to head up the employment team in 2019.
She has a City background and over 19 years of experience practising employment law. Rhian advises both companies and senior individuals on a full range of employment matters and is well placed to see employment issues from every perspective. She works closely with HR teams to promote claim avoidance and manage risk. Rhian is committed to understanding the specific needs of her various clients and has particular experience of advising in the financial services, healthcare and media sectors.