Flexible Working
Tue, November 12, 2019
As part of the Macmillan Davies 2019 HR Salary and Market Trends survey, completed by over 1400 HR professionals in the UK, we asked participants to rank their employee benefits. Flexible working featured as a top three benefit across every sector represented. In addition, when asked what would influence an employee to move jobs, better work life balance was selected as one of the main influencing factors by 49% of survey respondents.
According to the same survey, 66% of employees are currently benefiting from flexible opportunities in some capacity. This doesn’t necessarily mean a structured timetable for working from home, with many employers leaving it up to their staff to choose what best suits their lifestyle. Those who don’t have a defined structure report having the option to do so on an ad-hoc basis when needed, or on a project basis, for example when needing to work without distractions.
Businesses are moving away from the traditional 9-5 and it’s not just to meet the needs of parents or carers. Thanks to increased mobility and the facilitation of remote working through modern technology, businesses not embracing flexible working structures are now in the minority. It is an expectation for many candidates to choose a working arrangement that supports their requirements. Whether this means having the option to work from home, part-time, flexitime, or as part of a job share. Organisations who resist flexible working practices are much more likely to miss out on the best candidates.
As flexibility at work remains a hot topic, it is increasingly difficult for employers to avoid this subject. So what are the main employment law considerations in relation to flexible working?
1. Statutory Right to Request - Whenever an employee asks to work flexibly, the first consideration should always be to see whether they are exercising their statutory right to request flexible working. Only eligible employees are able to make such a request. Broadly speaking, an employee will be eligible if they have been employed for at least 26 weeks and have not made any statutory requests in the last year. If a valid statutory request is received, the employer must deal with it reasonably and usually a decision must be made within a three month period. There are limited grounds on which an employer can refuse such a request, being:
The burden of additional costs;
- Detrimental effect on ability to meet customer demand;
- Inability to reorganise 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
- Planned structural changes.
2. Discrimination – If a request is made (say for a change in hours or to work from home) and it is linked to the employee’s childcare arrangements or caring responsibilities, the employee’s own disability or their religious observances, there could be potential discrimination allegations if their request is rejected. Such requests should therefore be handled with care.
3. Health and Safety – It should not be forgotten that an employer has a duty to protect the health, safety and welfare of its employees. This applies regardless of whether the employee is working in the employer’s offices or off-site. Diligent employers who have regular homeworkers may want to ensure that they include contractual provisions allowing, for example, a home visit so that a health and safety risk assessment can be carried out.
4. Employee Monitoring – With employees coming and going at different times and/or working remotely, employers may wish to increase their surveillance. It should be remembered that there are laws governing the right to monitor employees, whether that be via CCTV, their use of the employer’s IT systems or similar. An employer’s monitoring should be for legitimate reasons and proportionate and sometimes the employee’s consent may be needed. Employers should also be mindful that there is an implied duty of trust and confidence between employer and employee so excessive monitoring could potentially destroy this trust, leading to constructive dismissal allegations.
5. Data Protection – With the new GDPR rules that have been introduced, data security is a much talked about concern. By having employees working off-site, there may arguably be an increased risk to data security. This can often be addressed by having a comprehensive policy on the data protection standards that you expect the employee to follow.
In addition to the above, there will be many other legal and practical issues that rear their head in relation to flexible working practices; be that how to prioritise competing requests from employees all wanting to finish work earlier to whether the company laptop provided to allow homeworking is covered by the company’s insurance policy. Whilst flexible working may bring some headaches for employers, it may also bring some benefits too. Organisations who have embraced it often report better employee morale, increased employee retention, reduced absenteeism and an improved ability to attract top talent. There can also be environmental benefits and possibly even lower costs for the employer, particularly if hot-desking is adopted.
This guide is for general information and interest only and should not be relied upon as providing specific legal advice. This article originally appeared at: https://economia.icaew.com/opinion/november-2018/the-pros-and-cons-of-agile-working.
Goodman Derrick LLP is a leading commercial law firm in the City of London, recognised for providing high quality legal advice across a range of practice areas.
Katee Dias
+44 (0)207 404 0606
kdias@gdlaw.co.uk
www.gdlaw.co.uk
