Associate Solicitor Petra Venton outlines the things to consider when making plans to move back into the workplace.
As omicron levels drop, it does now feel that we may be heading towards the so-called ‘new normal’.
I still feel conditioned to wear a mask in the supermarket, and am not entirely certain if it is OK to shake hands or hug, but it is good to be able to meet with friends and family again.
So, what does this move mean for the workplace? Many employers will have seen the benefits of remote working over the last two years in terms of reduced overheads and better productivity, but they will also be conscious of the challenges remote working presents when trying to create a workplace culture, encourage collaboration, or manage staff. Likewise, some employees will be desperate to return for those ‘water cooler’ moments, and others will be reluctant to return to the daily commute.
Before covid, only 2% of the workforce worked mostly from home. This has greatly increased. It’s anticipated that this shift to hybrid working will stick, which begs the question: What do employers need to think about before embracing such a change on a permanent basis?
Do employees have the right to work flexibly?
The pandemic has not changed the law on flexible working. Employees who have worked for 26 weeks have the right to request flexible working as long as they haven’t made a request in the previous 12 months. Employers have a duty to consider the request and respond to it within a three-month period. There are eight statutory reasons an employer can rely on to refuse a request.
Before the pandemic it was relatively easy for employers to turn down requests, provided they could point to an adverse impact on their business. Now employees have been working wholly or partly from home for two years it is more difficult for employers to show that such working arrangements will have an adverse impact on their business. Employers will therefore have to give greater thought to their reasoning behind a rejection and be mindful of the employee challenging the decision claiming it is discriminatory based on age, sex or disability.
Before leaving the right to request flexible working, I should also mention that changes to this right are in the pipeline.
The government consultation on the proposed changes concluded at the end of last year. The key changes that have been proposed are that: The right should become a day one right and not be limited to employees who have worked for six months; employers should be required to consider alternative arrangements if refusing a request; employees should not be limited to one request in a 12-month period; the time for an employer to consider a request should be reduced from the current three-month period; and employees should be able to request temporary as well as permanent changes to their working arrangements. We expect any changes to be brought in later this year.
What do employers need to consider before embracing the ‘new normal’?
The move to hybrid working in March 2020 came unexpectedly and was thought by many at the time to be a temporary measure. As employers now consider permanent changes to their working arrangements, they will need to give more consideration to the following:
1. Are changes needed to the employees’ contracts of employment to reflect their new working arrangements? For example, does the place of work or working hours clause need to be changed?
2. Likewise, changes to policies may be required and it is a good idea to put in place a flexible working or hybrid working policy to set out clearly what is expected of employees.
3. Have appropriate measures been put in place to protect confidential information?
4. Is a risk assessment required to review the arrangements in place at the employee’s home? Having undertaken such an assessment, is additional equipment required to assist the employee in their role?
5. What arrangements are in place to ensure the proper management and supervision of employees?
Just as I am reluctant to go shopping without a mask, many employers may be resistant to change. However, the workplace has changed during the pandemic and most commentators believe the changes are here to stay. Employers need to review their requirements and ensure they have the right policies and contractual wording in place. Furthermore, employers need to communicate with their employees so that they understand the options available to them.
These changes are not easy to navigate. If you would like help reviewing your policies or contracts, or just want to discuss your plans for flexible working, contact Whitehead Monckton.