Flexible Working post Coronavirus lockdown

By Hollie Whyman

The Coronavirus lockdown has forced many businesses to trial flexible working for their employees. With the lockdown rules now beginning to ease, surveys suggest that employees will be reluctant to return to the traditional 9am - 5pm day in the office. Businesses may soon start to see a significant increase in flexible working requests from their staff. Employers should prepare by taking the time now to reflect on their lockdown experience and consider if, and how, flexible working could work for their business long term.

What is flexible working?

 

Flexible working is any working pattern or arrangement that deviates from what was agreed at the outset of an employee's employment commencing and/or that differs from the employer's standard working arrangements or hours. There are many different forms of flexible working, from part-time work and job shares to home working, compressed hours, annualised hours, flexitime and staggered hours. Flexible working can also include any combination of these elements.

The statutory right to request flexible working has been available to employees with at least 26 weeks' continuous employment since 30 June 2014. The employee can trigger this right by making a written request (once every 12 months) for flexible working, setting out how the proposed changes will affect the business. The employer then has to deal with the request in a reasonable manner and notify the employee of the outcome and their right of appeal within a three-month decision period (which can be extended by agreement). Any refusal of the employee's request must be for one or more of the eight statutory reasons:

 

  • The burden of additional costs
  • Detrimental effect on the ability to meet customer demand.
  • Inability to reorganise work amongst existing staff
  • Inability to recruit additional staff
  • Detrimental impact on quality
  • Detrimental impact on performance
  • Insufficiency of work during the period the employee proposes to work
  • Planned structural changes

The pros and cons of flexible working

 

Flexible working can bring benefits for both employees and employers. Employees may benefit from a better work-life balance, being able to fit working hours around childcare, avoiding costly commutes and spending less on lunches. The potential downsides include feeling isolated, difficulties separating work and home life, and unsuitable working conditions. It is also possible that working from home can mean employees are less visible to the employer and can be overlooked for development and promotion.

For employers, benefits can include improved staff morale and productivity, improved staff retention and attraction opportunities, reducing overheads and minimising office space. However, employers may have concerns about lost motivation, confidentiality or data breaches, and a general fear of loss of control and productivity of their employees.

There may also be a loss of team collaboration and so less sharing and developing ideas and business opportunities.

How has the Coronavirus pandemic shifted attitudes to flexible working?

 

The appetite for flexible working is not a new phenomenon. Whilst some employers, particularly in industries such as technology, have embraced flexible working for years now, other employers have stuck to more traditional working arrangements. However, the Coronavirus pandemic has forced many (sometimes reluctant) employers to adopt a rapid and widespread shift to flexible working. This has led to significant working culture change across many office-based jobs.

A recent survey conducted by O2 in partnership with ICM and YouGov found that UK workers will be reluctant to return to traditional working structures after lockdown and once the government's advice to work from home comes to an end. The survey found that 91% of employees expected to work from home at least one day a week, with around a third (33%) expecting to increase the amount of time they worked from home to at least three days a week. Nearly half of workers (45%) expected a permanent change to their employer's approach to flexible working when lockdown ends.

There is evidence that businesses are starting to see the benefit in flexible working as well. Giants such as Google, Twitter and Amazon have already committed to a permanent flexible working going forwards. Many employers are recognising that working from home is not only possible but also beneficial. The majority of employees have shown that they can maintain excellent productivity and efficiency whilst working flexibly. Employers and employees alike have easily and quickly embraced tech such as Zoom and Microsoft Teams, demonstrating it is possible to connect and interact with colleagues and clients virtually. For some businesses, such technology has increased efficiency, aided training and enabled better communication.

Employers who do not offer their staff more flexibility at the end of lockdown may find they become outliers in a new working norm. Employers should consider whether this is likely to affect their reputation and/or lead to difficulty in attracting and retaining good employees.

Such factors will undoubtedly be fundamental for post-Coronavirus recovery plans.

There have also been suggestions that the government is considering reinforcing workers' rights to request flexible working and restricting the scope of employers' refusal.

How should businesses prepare for flexible working at the end of lockdown?

 

Given the apparent cultural shift we are going through; employers are likely to find their staff reluctant to return to the office full time once the lockdown comes to a complete end. Businesses who do not embrace some sort of flexible working going forwards may well find themselves inundated with requests for flexible working. The fact many employees will be able to point to significant successes in flexible working over the past weeks, together with continuing development of technology, may make it harder for employers to rely on one or more of the legitimate business reasons to deny a flexible working request.

It would be sensible for employers to prepare now for the end of lockdown by reviewing and updating their existing flexible working policies. Take some time to evaluate how well flexible working arrangements during lockdown have worked for the business and for staff. What benefits should be preserved, and what needs to be changed to address the challenges? Employers may wish to consult their staff and consider their suggestions. Employees may be more likely to accept any changes to the "new norm" of flexible working, they have become accustomed to during lockdown if they feel like they have been informed and listened to.

Finally, businesses should make sure they are prepared to deal with requests for flexible working with a positive mind-set and in line with their legal obligations. Check procedures are up to date and think about whether there are any structural changes ahead that may impact on the businesses ability to accept a statutory request for flexible working. Employers will need to be able to demonstrate proper consideration of each request and give an explanation for any refusal. Where it is not possible to accept the employee's request, consider whether any alternatives could be discussed with the employee.

Where an employer receives several flexible working requests at the same time, each request should be considered on its own merits, and in the order that they are received. The overriding requirement is for the employer to deal with flexible working requests in a reasonable manner. Employers should base decisions upon genuine business reasons and take care to avoid discriminatory prejudices.

 

For further advice on flexible working, or to discuss your employment matter, please contact Hollie Whyman.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

 

14 July, 2020
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