Having flexible friends

Adam Bernstein
Monday, December 20, 2021

There’s no question that Covid has altered society. It’s trampled on civil liberties, seen vaccines rolled out in double-quick time, spurred on the deployment of information technologies, and it’s reshaped economic landscapes, too.

But beyond these changes, the pandemic has led to a societal re-evaluation of the work/life balance. For some it was a signal to retire, for others, it meant a desire for a more home-oriented life.

Flexible working

Workers in the UK have had the right to request flexible working since April 2003. At the time, only parents and carers could request flexible working arrangements. However, at the end of June 2014 the law was extended to give the same right to all employees with at least 26 weeks’ service. 

With the return to the workplace this summer, more, including those in print, are wanting to exercise this right.

Looking back, BPIF CEO Charles Jarrold details how the sector used a mixture of home working and staff being on site during the pandemic. He says that “business activity is much higher now, although businesses are facing a new set of supply chain challenges. 

“So, typically, where staff were working from home, they have now come back to offices and usually with flexibility – say three days per week initially, with a review.”

And from what he has seen, while many employers want to provide the flexibility and benefit of working from home – where the role allows that – the office is still key: “It’s become very clear that being in the workplace has important benefits in culture, communication, engagement and welfare, as well as productivity.”

A rise in requests

Charlotte Ashton, senior solicitor at law firm ESPHR has seen an increase in requests over the past 18 months, especially as many workers feel they have proven that home working can work. In particular, she comments that “in terms of general flexibility, reduced or changing hours and days of work are very common enquiries that we receive”.

She adds that in many cases there is an expectation from employees their request will be granted. But this belief is not entirely correct as employers can reject any non-statutory requests for any reason. However, there are only a few reasons why statutory requests can be rejected, including additional cost burdens on the business, performance issues and the need to meet customer demand.

In her work as head of Health, Safety & Environment at the BPIF, Mandy Robson is seeing more requests from office staff (sales staff were already using a form of hybrid working pre-pandemic). And, as working from home during lockdown seems to have worked, she thinks it’ll be hard to refuse flexible working requests. Interestingly, she notes that “most roles were adapted so that they could be performed from home”. However, she says that has left “parts of roles uncompleted as people were not in the office”. Here she’s referring to administrative tasks such as filing, fire safety checks, machinery inspections and housekeeping “as this is impossible to conduct remotely”.

Nevertheless, Robson continues to find workers remarking that flexible working has ‘worked so far so why should it not continue?’ As she details: “They have made savings in the form of time and commuting costs throughout and want to continue with these benefits. 

“It’s also provided a good work/life balance for individuals working from home, and a different kind of working community using virtual calls as a means of catch-up.” 

In fact, she reckons that technology has been good for larger businesses where multi-site offices saw each other infrequently pre-pandemic.

A changing landscape

But a wind of change is blowing. Over the summer, Labour MP Tulip Siddiq proposed a Private Members’ Bill that would give the right to request flexible working from day one of employment. Even though it was applauded by many, and has its Second Reading planned for mid-March, many employers are likely to view such legislation with hostility.

That’s not to say that the matter is dead and buried. Far from it. The Conservative Party’s 2019 election manifesto outlined a plan to make flexible working the default position. However, it took until the third week of September (2021) for the government to announce a consultation into this new right. It closed on 1 December (see Making flexible working the default on GOV.UK).

As for the government’s plans, Ashton thinks that they may present a recruitment challenge for employers where they envisage a role being carried out in a certain way, but an employee makes a very early flexible working request. In her view “it may be difficult to agree to every request, particularly if the role is new within the business”.

At this point, Jarrold is keen to emphasise what the government is proposing – as he says, “it’s the right to request, not to have”. He doesn’t think it a positive step “as it risks creating an expectation that working from home will be given and that may not be possible for the business”. 

He adds: “With all the pressures on businesses at the moment, real care needs to be taken not to pile on more. We don’t think that the legislation is helpful – employers and staff can already have those discussions, legislation just adds more red tape without providing any real benefit.”

In opposition to Jarrold is, Josie Irwin, Unison women’s officer, who thinks that all employees should have the right to work flexibly from day one. It’s her view that “the current right to request allows too many employers stuck in the past to simply say ‘no’ to anything that means change and doing things differently”.

She expands on this: “Many employers have a rather outdated view of flexible working. That’s why so many workers are likely to be met with a flat ‘no’ should they ever dare to ask to start earlier, work from home occasionally, or condense their working week into fewer hours.”

Irwin backs this claim with data from a 2019 TUC poll, which found that one in three requests to work flexibly was turned down. The survey also found that flexitime is not available to over half of the UK workforce.

From a practical standpoint, Ashton would rather the government looked at why employees need flexibility and seek to change that instead of burdening employers with more regulation. In illustrating her point she picks out the lack of affordable and available childcare as being one of the main reasons why individuals request flexible working.

Working from home

The press has drawn attention to employers who have sought to cut employee pay for employees working from home - the argument being that they aren’t commuting and so are making savings (even though they are paying for utilities that ultimately benefit their employer).

However, as Ashton highlights, it’s a dangerous game to play and warns “of a risk of indirect sex discrimination and equal pay claims, particularly as more women are likely to request working from home.” Beyond that she talks of the effect on morale and retention of staff where employers choose to cut pay for those working from home.

Understandably, from a union perspective, Irwin says that no-one working from home should have their pay cut - “there is zero justification for such an approach.” She reckons that employers who do so “are likely to be faced with an exodus of staff, keen to work for organisations prepared to embrace modern ways of working.” Similarly, she says that “firms who fail to include their flexible credentials in job adverts will struggle to attract candidates.”

Of course, some home working agreements offer reimbursement of some expenses for employees. While it is true that employees will save on commuting and associated costs which may offset utility bills, as Ashton notes, “in times of rising energy prices, employees may look to recoup the additional costs of being home for work”.

Irwin takes this point further, saying that employers should ensure that staff home working should claim the working from home tax break (see Claim tax relief for your job expenses on GOV.UK). To this she adds that employers should also “carry out risk assessments to ensure employees are working healthily and safely and have the right to disconnect outside working hours”.

Ultimately, for Robson, the answer lies in clear, concise and properly available policies and procedures on what can be claimed and how they should be claimed – “right down to ink, pens, chairs, printers and monitors”. 

It should be remembered, she says, that while employers may not demand employees return to the office, some employees may not wish to work from home either, and this should be taken into consideration: “They may live in surroundings that are not conducive to work... children, elderly relatives and other distractions and health and safety implications, or the broadband or available room space may be insufficient to work.”

An alternative to pure home working is the hybrid where employees partly work from home and partly from the office. And Ashton backs this, saying “that many employers find this is a good middle ground where they can give staff flexibility but also retain the ability to have teams work together and create a good office atmosphere”.

A challenge for hybrid working, and one that Robson sees, is creating enough hot-desking workspace if there are a number of employees remote working.

But no matter the route, Irwin reminds that flexible or hybrid working doesn’t just refer to working at home – “it can mean having predictable or fixed hours, working as a job-share, or working flexitime, term-time only hours or compressed hours”. She comments that with society expecting women to do the lion’s share of childcare, “proper flexible working and a shift in employer attitudes would make the world of difference and help break down barriers to women’s progression at work”.

A duty to protect

Working from home may be on offer, but employers shouldn’t forget that they still have a duty to protect employees’ mental health and wellbeing – no matter where they work. On top of this is the matter of employees feeling that they might lose out from not being in the office.

Here the answer, says Ashton, is for employers to maintain fair systems for training and distributing work so that employees at home are kept as engaged and up to date as those in the office. She’s concerned that “if employers foster a culture of ‘out of sight, out of mind’, there is an overall risk to staff welfare, in particular for women who are disproportionately affected compared with men because they are more likely to request home or flexible working to balance childcare”. This could result in discrimination claims.

And Irwin makes similar points. She advocates a common-sense approach where “managers with staff working from home should check in with them regularly, involve them in team activity and make sure they switch off at the end of the working day”.

That said, a serious concern for her is the welfare of the young who are new to work or who’ve recently switched employers who would benefit from meeting and working with colleagues in person. Overall, she says that “regular days where everyone is in the office will be beneficial to the entire team, or alternatively, have a mix of both office and home working”.

And this is a problem for Robson too. She says to consider ‘real-world’ interaction “as isolation can become an issue for employees that do not leave the house and who potentially may not have family or a wide circle of friends”. For them, work may be the only way they meet and socialise with others.

But how should managers keep tabs on workers’ whereabouts and quality of their work? The answer for Ashton lies in the training of managers as some will take more naturally to this than others.

One tip that she offers is to “consider the role that is being done and what qualities that brings to the business as this will shape how to monitor performance.” She continues: “Employers should be careful not to micro-manage and excessively track an employee’s home-based work – it is often about trust and autonomy.” Employers that get this wrong could see a high turnover of staff.

Remember, if Covid had struck in, say, 1980, the effect on organisations would have been catastrophic. We have been relatively fortunate in having the technology to cope. And Robson sees technology playing a positive role in managing employees, especially where employees log in and make themselves available. So, with regard to an employee’s whereabouts, she says that “you would manage it in the same way you manage field sales employees to ensure consistency – you would manage quality and output no differently. However, guidance, support and training need to be clear and concise as managing remotely does pose additional obstacles”. And if individual meetings are to be held, they could be held at a mutually agreeable location outside of the office, if those attending prefer. 

To this comes an essential point from Jarrold – that “if the business decides that working from home is acceptable or desirable, it’s accepting that keeping tabs on some aspects of the role, such as where the staff member actually is, will naturally be a secondary concern”. 

He says it’s more important to ensure that there’s a clear structure in place to engage with staff, keep them involved and clear on what’s expected, and to take the time and space to engage and review welfare.

Inevitably, he says monitoring is difficult without being very intrusive. Fundamentally, he thinks that open discussion, consultation and agreement of the approach is key to staff engagement – “and this means explaining approaches and decisions and being willing to listen and take on board staff concerns”.

Getting it wrong

So, with the detail set out, what are the consequences for failing to manage flexible working requests properly?

The consequences for Ashton are clear: employees can bring a claim that an employer has failed to follow the statutory procedure. However, such claims, she says, are relatively uncommon and compensation is, anyway, capped at eight weeks’ pay. A much greater risk to employers, she says, are “claims of constructive dismissal and discrimination on grounds of sex, disability and religion and compensation for these would be uncapped for such claims and include loss of earnings and injury to feelings”.

And of course, there are non-legal related risks that include damage to staff morale and recruitment issues.

In summary

It’s entirely clear that home working and flexible working is here to stay for some, especially as the government intends to bring forward legislation on the matter. But while it’s a new way of working, if it yields the right results for the business, employees are happier and there’s less commuting, what’s not to like? 


THE UNION PERSPECTIVE

“It would be a rather strange person who didn’t want a better work/life balance,” says Josie Irwin, women’s officer for Unison. “One of the few good things to result from the pandemic is likely to be the seismic shift in the way we work.”

As she and countless others have seen, for office-based staff, technology has made so much more possible: “If the pandemic had struck just a few years ago, the experience of the past 19 months would have been rather different without Teams or Zoom.”

She worries that some employers have a dim view of flexible working, “mistakenly believing it allows those who do little to do even less”. But she believes that the reverse is true – “employers that truly embrace flexible working will find it much easier to recruit and hold onto staff than bosses who don’t”.

Working from home has undoubtedly been a struggle for many. Mental health issues have risen especially for young workers, “living,” says Irwin, “in tiny flats or in house shares struggling to find a space, competing for the best spot to get Wifi or phone signal. Others living on their own have found it hard.”

Further, she tells how pandemic working has lengthened the working day too: “Before Covid, leaving the office signalled the end of the day for most. But when work is a laptop on the kitchen table, a desk in the bedroom or a coffee table in the lounge, it’s much harder to switch off.” The net result is that some employers expect staff to be available around the clock. 

On a more positive note, Unison thinks that home working has seen an increase in productivity “with no wasted time travelling into the office on often long and stressful commutes”. On this Irwin understands that staff working this way have saved money but at the expense of city centre businesses that have struggled. However, she’s seen “local neighbourhoods experience a renaissance”.

Ultimately, she and Unison believe that an element of home working is almost certainly here to stay. She says that negotiating these changes will be “key for unions over the coming weeks and months. But improving the way the UK works must also embrace those who’ve never stopped going to their place of work”.


Note: The BPIF says that it offers members practical guidance on health and safety, HR and legal matters.

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