Agile working: not as flexible as you might think

Some employees may feel isolated working exclusively from home.

Agile working, whether that’s allowing employees to work remotely or being flexible about hours, has been hailed as the answer to work-life balance. But there are numerous legal and other issues that employers need to consider to get it right, says professional support lawyer Katy Meves.

Not that long ago, working from home was seen as a perk to be coveted and the answer to the work-life balance conundrum.

Indeed, figures from the Office for National Statistics suggest that in 2014, 4.2 million people spent at least half their working time at home, up from 1.3 million in 1998.

The numerous benefits of home working, such as improved morale, reduced stress levels, greater efficiency and productivity, lower travel costs and infrastructure savings for the employer, were extolled by many.

But, as more and more organisations embrace the current trend for “agile” working – which usually involves some or even exclusive working from home – there are some legal and practical issues which need to be considered in more detail. They also highlight that home working might not be the panacea it was once thought to be.

Always on?

Advances in technology have undoubtedly facilitated home working in recent years. With smartphones and tablets, we can all work on the move or in any location these days, but is that a good thing?

It has been suggested that home working can actually cause stress for some people as the blurring of the lines between home and work leads to an “always on” culture with work seeping into quality family time as people “just check” their emails or make one more call.

Lack of management oversight was often cited as a reason why employers resisted their employees’ calls for homeworking. However, with advances in technology, it is now possible to monitor exactly when employees are working and what they are doing.

Organisations need to make sure that their data protection policies are up to date and that staff are aware what monitoring will take place while they are working from home. Employers also need to ensure that staff have consented to that monitoring.

Since June 2014, all employees with at least 26 weeks service, regardless of whether or not they have caring responsibilities, may make a request for flexible working.

Often homeworking is requested, but employers may turn down such requests on specified business grounds. However, there is no converse right for employees to request full-time working or refuse flexible working if it is introduced across the workforce by the employer.

So, for an employer introducing agile working and requiring employees to work from home for all or a majority of the time, what other issues may arise?

Take care with contracts

The starting point is the existing contract of employment. This should specify a place of work. If the location is closing down altogether then there is, on the face of it, a place of work redundancy which may trigger redundancy payments.

If more than 20 employees are likely to be affected, then the collective redundancy consultation provisions will be triggered. However, if the contract contains a mobility clause  then the employer should be able to argue that it is implementing a variation of terms rather than a dismissal.

In any event, employers should ensure that there is a suitable consultation process with employees so they understand what changes are being made and why.

There may well be resistance to change. A hasty process may result in disgruntled employees bringing grievances or even considering whether the employer’s actions have breached the implied term of trust and confidence (which would enable them to resign and claim constructive dismissal).

One of the reasons for introducing agile working is usually to save costs on overheads – BT reportedly saves millions of pounds a year through homeworking.

However, employees working at home are likely to suffer increased costs on heating and electricity. Organisations need to consider what expenses staff will be able to reclaim and ensure terms and policies are updated accordingly.

Health and safety legislation applies to homeworkers in the same way as office-based workers. All employers have an implied duty to take reasonable care of the health and safety of employees.

This includes not just physical health but also mental health. Employers must take reasonable steps to provide a safe workplace so need to assess employees’ home work space and equipment.

Keep in contact

The social benefits of a traditional working environment are well recognised, as is the fact that a lack of face-to-face interaction can have a negative effect, leading to feelings of isolation and, in extreme cases, depression.

Such lack of contact can lead to a reduction in staff commitment and difficulties with team integration and the reduction in “water-cooler” conversations has been blamed for reducing company innovation.

Where employees are based at home for all or the majority of their time it is important that regular face-to-face meetings with managers and colleagues are scheduled to avoid this.

Proactive management is likely to be key. Instant messaging, conference calls with shared screens and video conferencing are ways that staff can keep in touch with colleagues and feel connected.

Consideration should also be given to whether there may be individual issues with planning permission, covenants against business use or restrictions in employees’ leases which prevent them from being able to use their home as a workplace.

Katy Meves

About Katy Meves

Katy Meves is a professional support lawyer in the employment practice at Shoosmiths.
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