BNY Mellon’s flexible working policy review: what can HR learn?

Last week US bank BNY Mellon informed its employees it was “pausing” a review of its policies that allow them to work from home. But what are the implications if HR decides to change or scrap an existing policy, and how should they go about it? Andrea London explains.

We have all heard the terms “flexible working” and “agile working”. In the past decade they are increasingly synonymous with the millennial culture and a step towards obtaining that elusive work-life balance.

Smarter technology has made working other than in an office viable and many employees now actively seek roles which enable them to work flexibly, often from home, a couple of days a week. Indeed, forward-thinking employers now offer this as part of the standard working regime, even in industries where this was previously not even thought possible, such as banking and financial services.

There are various reasons for this shift in more agile working practices, but one of the main pushes towards greater workplace flexibility seems to have resulted from the employer’s need for the best employees within their businesses, so having to take into account the requirements of those employees, even if that means there has to be some work location and timing compromises.

There has also been a perception change insofar as, where an employee isn’t at their desk in the office; Monday to Friday; 9am to 6pm this no longer suggests that they are “slacking off”. Quite the opposite: the productivity of remote working employees has long been known to be generally higher and most homeworking employees will work during those hours they would have ordinarily spent travelling into the office.

It is true, however, that two groups of workers have probably benefited most from the perceptual and actual changes in flexible working, and so will lose out if there is a sudden reversal of this view (and in practice).

Firstly working mothers, as remote working can significantly assist with juggling childcare responsibilities. It is also thought it may go some way to “reducing” the gender pay gap. Secondly, those workers with disabilities often also find working remotely assists in the management of both their physical and mental conditions.

Change of heart?

So, what is the situation if – like BNY Mellon – having previously been an employer who permitted, encouraged or gave staff remote working entitlements, you consider that actually you want your staff to come into the office?

In short; this kind of change – like most substantial changes – won’t be easy. Expect to have to handle the matter very sensitively and be aware that there will be a number of potentially significant issues to be navigated; not all of them legal.

Ultimately, you may well not be 100% successful in achieving the result you want straight away, but a smaller, partial change – in the short term, may be better than a wholly disgruntled workforce threatening or indeed bringing claims in the employment tribunal.

At best, employees will react with their feet, and simply leave; at worst they will bring employment claims, possibly in group action form.

Before reversing any HR policy across your entire workforce, which many may consider as detrimental to their working life or environment – there are the various considerations to be mindful of before proceeding. Consider a flexible working policy “reversal” by way of example:

Take legal advice

Take proper and appropriate legal advice: there are invariably going to be legal considerations when dealing with employee terms and conditions. For example where a policy has been built into a contract of employment, a unilateral change by an employer may result in breach of contract claims.

Even if it is a “non-contractual” HR policy in the staff handbook, be aware that it may have become contractual or quasi-contractual by longevity or custom and practice.

Otherwise, where the implications of the change could place certain persons or groups with protected characteristics at a disadvantage, this could be indirect discrimination.

Looking at flexible working; given its usage by (mostly) female working parents and those staff with disabilities – there is a distinct possibility this claim could be brought.

Further, discrimination claims can be brought during ongoing employment, which could have a hugely detrimental effect on the business.

What are the logistical implications?

Employers need to look at the logistics of their whole workforce coming into the office every day for core hours, in particular whether there is enough space, and managing the greater utilisation of office facilities by more employees.

What about morale?

Finally, but perhaps most importantly, the generally morale of your workforce will almost certainly be negatively impacted by an enforced change, at least initially.

Consider some consultation with staff to ascertain the level of acceptance of a policy reversal. This will assist an “inclusive” approach. Many employees will invariably consider even just a policy review like the one carried out by BNY Mellon to be a huge backward step, and a move against diversity.

While it is clear there are significant positive benefits to staff working collaboratively in close physical proximity to their co-workers in an office, any business whose central asset is its people needs to at least have some consideration for their views and concerns.

At best, employees will react with their feet, and simply leave; at worst they will bring employment claims, possibly in group action form.

Perhaps not unexpectedly, having announced the intention to review remote working, the employee reaction has caused BNY Mellon to backtrack quickly and it is now seeking to consolidate its position via compromise announcements.

Poor handling of a tricky employment issue could lead to a potential mass exodus of staff in the near future, which is highly unlikely to be at all good for business and could well have been avoided.

Andrea London

About Andrea London

Andrea London is a Partner and head of the employment team at Fletcher Day
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