Agile working has long been embraced by many businesses, it can take many forms, including earlier or later start and finish times, working remotely, consolidated hours (usually where the hours worked over five days are condensed into four longer days), term-time only work and/or working over the weekends rather than just during the traditional working week. Truly agile working is allowing employees total empowerment to choose when and where they work. However, usually an employer will place at least some limits and conditions on the arrangement, for example, insisting on core working hours and restricting the number of days spent away from the office.
There are many pros to agile working, such as helping to attract and retain top talent, boosting work morale (a happier workforce usually means a more efficient one) and reducing absenteeism. However, there can be downsides. With teams not being physically present together, there could arguably be less opportunity for collaboration and on-the-job training could potentially suffer. There will also be practical hurdles to overcome, for example, how to prioritise competing requests from employees, for example where one is juggling childcare constraints and the other is simply not a “morning person”.
Whether you support it or not, it is important to remember that someone who has been employed for at least 26 weeks will usually have a statutory right to request flexible working. Such a request should be handled reasonably and usually a decision must be made within three months. It should only be refused on limited grounds, such as where the request would have a detrimental effect on the employer’s ability to meet customer demand, where there is an inability to reorganise work among existing staff or recruit additional staff or when it would have a detrimental impact on quality or performance.
From an employment law perspective, agile working throws up lots of other legal considerations too:
• Discrimination – If a request is made 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 refused.
• Health and Safety – An employer has a duty to protect the health and safety of its employees regardless of whether the employee is working in the employer’s offices or off-site. Employers may want to ensure that they include appropriate contractual provisions allowing, for example, a home visit so that a health and safety risk assessment can be carried out.
• Employee Monitoring – With employees coming and going at different times and working remotely, employers may wish to increase the surveillance of their employees. Further, excessive monitoring could lead to allegations that the implied duty of trust and confidence between employer and employee has been destroyed, leading to constructive dismissal claims.
• Data Protection – By having employees working off-site, there may arguably be an increased risk to data security.
To conclude, given the minefield that could be agile working, employers would benefit from:
1. Implementing a clear policy so that their employees fully understand their rights and the limits on any flexible working regime offered by the employer;
2. Ensuring that they deal with any requests fairly and in a non-discriminatory manner and, where appropriate, in accordance with the statutory process;
3. Thinking through the practical consequences, such as ensuring adequate insurance cover and appropriate handbook policies (such as a monitoring policy, data protection policy and health and safety policy) are in place; and
4. Continuing to monitor and react to the changes in culture and employee expectations as time goes on.
Katee Dias is a senior solicitor in the employment team at Goodman Derrick LLP, the London law firm. A variation of this article first appeared in Economia.