The trial run of remote and flexible working that the workforce has experienced over the last year has undoubtedly caused attitudes towards working to change drastically. Home working and flexible working hours have become “the new normal” and for many large businesses this method of working has proved surprisingly successful. The pandemic has accelerated the Government’s pledge in 2019 to make flexible working the default position. The next step is to ensure this new era of working is enshrined and workers’ rights strengthened as we emerge out of the pandemic.
Recent surveys and research projects have found that 73 per cent of employees have enjoyed the flexibility and control over their working pattern as a result of the pandemic (Work After Lockdown research project). In addition, a recent YouGov survey found that 57 per cent of employees wanted to continue working from home (at least some of the time) after the pandemic.
Undoubtedly flexible working grants employees a better work-life balance and many believe it has boosted productivity and motivation. Noel Quinn, CEO of HSBC, described flexible working as the “new reality of life”. It is hoped by some businesses that offices will become the location for collaboration and socialisation but that most employees will remain remote-based to allow for office downsizing and re-design.
Despite the apparent benefits remote working has for many employees and their employers, some staff have reported feelings of isolation and disengagement. 47 per cent of employees reported reduced mental wellbeing and 33 per cent of employees reported managerial issues as a result of working home (YouGov survey). In addition, there are some businesses who are reluctant to embrace the advantages remote working has to offer, for example, David Solomon, CEO of Goldman Sachs, has called flexible working “an aberration” that must be corrected.
The Department of Business, Energy and Industrial Strategy announced in March 2021 that they would launch a public consultation later this year in order to strengthen workers’ rights to work flexible hours or from home. A similar consultation was carried out in Ireland in the Summer of 2020. Based on the findings, we can expect similar measures to be implemented to assist remote-based employees and strengthen their rights. For example a relaxation of the flexible working request procedure.
At present, employees have a right to make a request to vary their working pattern and their employer must reasonably consider this request, however there are seven lawful business reasons they can refuse the request.
Adjustment to the procedure could include narrowing these potential business reasons for refusal, strengthening the sanctions against employers who fail to consider the request or widening the right to make such a request available to more of the workforce. Other measures to assist workers could include additional training for managers to spot signs of poor mental health and domestic violence, financial assistance with telephone and broadband bills and the encouragement of the “right to disconnect” principle.
Unfortunately, it could be quite some time before any of the above changes are implemented. The Government are keen to coax workers back to the workplace, with Boris Johnson adamant that the cities will be “full of buzz…again”. Despite this, as restrictions are relaxed, businesses could find themselves inundated with flexible working requests.
Businesses should prepare now by reviewing their flexible and remote policies. In particular, consideration should be had to the following four principles: Fairness- will all staff be offered flexible working? Inclusivity- how will the business ensure remote- based employees have their voices heard? Collaboration- what means will the business put in place to encourage collaboration and innovation between staff? Finally, inequality- how will the business support those staff who do not have suitable working environments?
Arguably, the movement towards flexible working presents a real opportunity to address wider issues currently affecting the workforce. Issues such as the return to work following maternity/paternity leave, long term sick leave and expensive and draining commutes many workers have had to endure, could become a distant memory.
However, unless the Government also place obligations on businesses to put their staff’s wellbeing at the centre of their focus there are also likely to be longer term negative consequences of this new found flexibility.
Rhona Darbyshire is a partner and head of the employment team at law firm Cripps Pemberton Greenish. She specialises in advising clients on the defence of strategic claims that have a high value or may have a major reputational impact. She also has particular expertise supporting employers in relation to complex HR issues, such as team moves, large-scale company restructurings, senior employee exit strategies, restrictive covenants, employee relations, outsourcing and complex TUPE matters.
