Keeping it flexible – What to consider for the future world of work

For office workers, Coronavirus has made contortionists out of the least flexibly minded manager. Some estimates place nearly half of all employees as working from home at some point in the early parts of the pandemic, and government guidance has steadfastly remained that work should be done from home where possible.

Pandemic driven home-working though is not at all the same as a long-term strategy on flexible working. Flexible working is so much more than employees temporarily swapping location, but the enforced trial has raised employee's expectations for a more open-minded approach to when and how they should be expected to work. The most difficult aspect will come however, when businesses need to set a strategy for how they want their people to work going forwards. Hybrid models sound great in theory, but you need a framework for this to work well in most workplaces. How do you want to see employees filter back into the workplace?

As we eye the possibility (whisper it) of the government guidance on office working changing in the short-term future, what should businesses be considering and why should you look to get ahead with your strategy?

Perceived advantages to greater flexibility around place of work

Improved productivity – most statistics show this has been the case for homeworkers during the pandemic, and there are pre-pandemic studies on home-working that demonstrate this is not simply a reflection of job fear.

A boost to diversity – your pond no longer needs to be geographically linked to the office location.

Reduced overheads for businesses – smaller offices will be needed if you do not require space for all of your employees. You also do not necessarily need to be paying ‘usual’ salaries for your immediate location.

Reduced spend for employees – commuting is costly.

Improved work/life balance – although the pressures of working from home and living at home can give rise to stresses that weren’t previously there.

Perceived disadvantages to greater flexibility around place of work

Erosion of corporate culture.

Loss of training opportunities for junior colleagues.

A siloed approach – potential for less collaboration.

Risk of a two-tier workforce – with those less able to work from the office as much as others potentially more likely to be marginalised (or even a simple perception that this is the case).

Loneliness/a feeling of being disconnected/unsupported.

Deterioration in work/life balance – although this can work the other way.

Potential issues with compliance on matters such as data protection, regulatory controls and basic day to day supervision where that is difficult to do remotely.

Places potential pressure on employees who may not have a suitable home working environment if there are controls in place as to how often the office can be accessed.

May be more difficult to track and assess productivity and performance unless you have the processes in place to support this.

What else does flexible working mean?

Think beyond physical workplace and do consider whether there is a positive/negative case for greater flexibility on hours of work (total hours per week, the time at which they are worked and how rigid that needs to be) and more job sharing.

The possibility of employees working abroad permanently needs to be more cautiously considered than other flexibilities – there are varying tax, immigration, social security and employment implications to be considered even if you are fine with the practical implications. 

Interim considerations

Your strategy will need to factor in the need to retain social distancing measures for a period of time and the possible impact that may have on perceived benefits of returning to the office and how to manage those. Do you need a team rota for office use, for example, in the short to medium term that you will unlikely use in the longer term?  

You will also need to consider and manage anxiety about the virus in terms of both the measures in your workplace and how employees would usually travel to work.

Ensure that the business keeps up to date with the changing government guidance on what is required in terms of safe working space, which is set out by sector and work environment.  

Formal flexible working requests

If you receive a valid written request for flexible working from an eligible employee, do remember that this puts you automatically within the confines of a rigid statutory procedure which requires that you deal with the request reasonably (in line with the Acas Code of Practice on flexible working requests), deliver a decision within 3 months and only reject it for one of the following defined grounds for refusal:

  • the burden of additional costs;
  • detrimental effect on ability to meet customer demand;
  • inability to re-organise work among existing staff;
  • inability to recruit additional staff;
  • detrimental impact on quality;
  • detrimental impact on performance;
  • insufficiency of work during the periods the employee proposes to work; and/or
  • planned structural changes.

Employees can lodge tribunal claims if you have not dealt with their request in a reasonable manner, have failed to notify them of a decision within 3 months and/or have rejected their request for a reason outside of the defined grounds. Employees bringing such claims can be awarded:

  • an order from the Tribunal that the business must reconsider the request; and
  • compensation that it considers to be just and equitable up to 8 weeks cap at the statutory cap (currently £538 (increasing to £544 from 6 April 2021). 

Such claims are also usually accompanied by more costly claims for direct discrimination, indirect discrimination, failure to make reasonable adjustments and/or constructive dismissal.

It could prove unhelpful to an overall strategy towards a new model of working if you have multiple formal flexible working requests running concurrently. For this reason, we say it is best to plan ahead. Tell your employees that you are as interested in new permanent ways of flexible working as they are, survey your staff, start a conversation/consultation and implement a strategy on your own terms. This is better for engagement and prevents you becoming hostage to formal processes which only impact one individual (and could mean constraints on what more you can do for others).

Your strategy will be best aimed at establishing what the 'regular' expectation will be for employees in terms of flexibility. You will still need to be ready to consider requests on a case by case basis from employees who want or need more flexibility – but it is important that you have established your new normal against which to assess this first.

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