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"Working 9 to 5, what a way to make a living" but "I don't get no... satisfaction"

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Whilst commuting back from work, you may well overhear conversations about the chairman’s Virtual PA coming into the office for their weekly face-to-face meeting, the mother who is working 4 days a week term time only and the person on their way to the airport to commute back to Spain, who spends one week in the London office and the next working from their beachside home. On social media, you will inevitably find posts promoting agile working and critic on how the traditional 9-5 office environment is no longer fit for purpose in these modern times.

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.

Also, it is worth bearing in mind that an employee’s job satisfaction is perhaps gaining increased importance. A recent report called “Measuring Good Work” by the Carnegie UK Trust and the Royal Society for the encouragement of Arts, Manufactures and Commerce makes a recommendation to the government that employees should be surveyed about their job satisfaction. The criteria used to measure such satisfaction could potentially include the right to work flexibly, both on an informal and formal basis, and the suitability of working hours to fit with family and social commitments.

With this in mind, forward-thinking employers will perhaps want to consider whether flexible working can be offered and if so, on what basis (for example, will there be limits and conditions or will employees be totally empowered to choose when and where they work). For employers who feel unable to embrace any form of flexible working, it may be worthwhile setting a review date to re-evaluate the situation as attitudes, technology and customer demands change over time.

This guide is for general information and interest only and should not be relied upon as providing specific legal advice. If you require any further information about the issues raised in this article please contact the author or call 0207 404 0606 and ask to speak to your usual Goodman Derrick contact.