Flexible Working: The Legal Considerations Around the Changing Workplace 

The workplace landscape, as a result of the COVID-19 pandemic, has changed profoundly.  Whilst we were going through the COVID-19 pandemic we were told, where possible, to work from home.  For many businesses, it was a revelation you can continue business operations whilst remaining at home.  As a result, the workplace landscape has changed dramatically.

Post COVID-19, there has been an acceptance to continue with remote/hybrid working.  However, some businesses have tried to implement a move back towards the traditional office space.

Jas Dubb from The Wilkes Partnership comments:

“With the economy being closer to fuller employment, it means that employees, seeking a better work-life balance, are demanding hybrid working arrangements.  That demand is shaping recruitment and retention decisions.  What is accepted is working from the office 100% is no longer necessary or justifiable. What is required is striking a balance between business needs and a content and effective workforce.”

Legal Framework

Employment legislation already provides some of the building blocks for seeking remote/hybrid working.  The following legal framework already exists:

• Flexible Working Regulations – Subject to qualifying criteria, employees have a right to request flexible working arrangements, including a change to their place of work
• Discrimination/Equality Act – This gives employees with protected characteristics the right to seek changes to their working practices. For example, an employee can seek a reasonable adjustment to their place of work if they have a disabled or avoiding potential indirect discrimination claims from under-represented sectors (such as female employees, older employees, etc.) who may be disproportionately affected by a return to working in the office
• Part-Time Workers Regulations – The regulations are there to ensure that part-time workers are not treated less favourably compared to full-time workers. Meaning this sector of workers have the same opportunities for training and promotion and benefits comparable to full-time workers who adopt remote/hybrid working practices
• Health and Safety – There remains a legal duty on the employer to ensure the health and safety of staff in the workplace wherever that may be. This includes conducting risk assessments, providing necessary equipment, and maintaining communication channels to abate health and safety concerns whether they work in the office or remotely

Benefits

There is a strong business case for the merits of increased flexible working.  These include:

• Reduced operational costs – There is a direct saving on expensive workspaces, equipment/infrastructure and running costs
• Greater productivity – There is some evidence that shows staff are more productive working from home, by saving time on travelling and by being better motivated due to the greater flexibility
• Less lost working time – Working from home avoids lost time due to external disruptions such as adverse weather conditions, transport problems, industrial strike action etc.
• Skill retention and recruitment – Businesses can recruit from a wider geographical talent pool. Moreover, it may prevent businesses from losing their current staff for such reasons as family relocation, new family arrangements such as caring responsibilities etc.

Legal and Practical Considerations

Businesses will need to address a number of practicalities and legal considerations when entering into remote/hybrid working arrangements with staff.  These include:

• Contract Changes – consider whether the employment contract reflects clearly the change to remote/hybrid working. Do you need a new contract to reflect a new working practice?  You may consider even having a working-from-home (WFH) policy
• Trial Periods – if it is appropriate you may consider having an initial trial period. In which case, how do you retain the right to revert back to the original workplace if necessary?
• Performance Management – think about regular communication, feedback and monitoring mechanisms to ensure and measure productivity
• Health and Safety – how will you provide and maintain a safe system of work including any equipment/plant/machinery supplied? What about the employee’s mental wellbeing working in isolation at home?
• Data Protection and Security –organisational measures need to be put in place to prevent unlawful processing of data and to maintain confidentiality. Strict guidelines should be in place for handling and using business information, all of which may be covered in a WFH policy.

The above are just a few aspects that need to be considered.  There is a lot more which should be covered.

Jas comments:

“A change in the workplace arrangements will have an impact not only on the physical location but also requires re-examining the working relationship which comes with it, including the legal framework.  As employment Lawyers, we can guide businesses through the process.”

By adopting a proactive and considered approach to the changing workplace, employers can adhere to their legal obligations ensuring a measured approach. Whilst putting in monitoring and performance measures to ensure productivity it can still achieve a better work-life balance for staff.

To discuss anything arising from this update, please contact Jas Dubb on:  0121 710 5929 or via email:  [email protected]  or you can also contact other members of the Employment Team on 0121 233 4333 or email us at: [email protected]