post lockdown return to the workplace – part 4: flexible working

The roadmap easing us out of lockdown continues, despite concerns that the Indian variant may de-rail progress. We are now less than 3 weeks away from the date earmarked for all restrictions to be eased.

Welcome to the fourth in the series of these didlaw blogs following us back to the workplace in the weeks ahead. So far we have reviewed the impact of businesses re-opening and welcoming their employees back in terms of policy and strategy. We have focused on the requirement to conduct a COVID-19 risk assessment, addressing the health and safety concerns that will inevitably arise and the mental health implications as thousands of workers head back to work.

In an earlier blog we reviewed the increase in momentum towards the post-pandemic hybrid workplace in the last 15 months and how such a blended pattern of working may continue for many with a split between the home and office. Earlier this month Ernst & Young published the results of a survey which showed that nine in ten employees want flexibility in where and when they work going forward and 54% would consider quitting if they are not afforded some form of flexibility post-pandemic. Now we have all experienced a different way of working, the appetite is there for many to continue to work at home or, for most, a blend of the office and remote option would be ideal. So, it is time for businesses to revisit a flexible working policy moving forward.

On one side of the coin remote working has facilitated the opportunity to achieve a work-life balance for many and there are major environmental benefits as we all reduce our carbon footprint. Businesses benefit from huge savings on office costs and have had the opportunity to analyse work efficiencies and productivity in the remote workplace. Many have welcomed this new way of working and are reluctant to return to the office. On the flip side, some businesses remain concerned about employee engagement and productivity and many employees are desperate to return to work, connect with the outside world and interact with colleagues and mentors.

So what is the answer?

The ‘f’ word – flexibility.

Unless employers now proactively adapt, they must brace themselves for an influx of flexible working requests. Since 2014 the Flexible Working Regulations provide that an eligible employee can request to work flexibly in terms of hours, location or other arrangements. The request must be dealt with reasonably and granted unless an employer can demonstrate one of the eight prescribed grounds to reject the request:

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 that you propose to work
Planned structural changes

Employers are now advised to dust off their flexible working policy and adapt these to address the post-pandemic working world. Employers and employees now have practical evidence to support whether some of the grounds listed above apply.

Policies should align with the regulations and ensure a fair procedure is applied. Many of those requesting to working flexibly going forward may have additional protections under the Equality Act to include disabilities, childcare reasons or age-related concerns. Employers therefore need to ensure that their procedures do not discriminate against certain groups.

Other issues for employers to consider include the health and safety concerns of cramming all employees back in the office on 21 June, the retention and loyalty of staff by granting flexibility but also considerations regarding technology and other process to facilitate a remote workforce.

Employers are advised to be one-step ahead in the roadmap and review their policies, processes and consult with staff. Employees who consider that their employers are unreasonable responding to their request to adopt a blended work approach post-pandemic are advised to seek advice early. At didlaw we are here to help.

This blog is by Caroline Oliver, Senior Solicitor at Didlaw