Legal opinion: Flexible working during the Olympics

Planning for the London Olympic and Paralympic Games 2012 has now begun in earnest. Employment lawyer Laura Evans looks at the practical and legal issues.

With reports this month warning of hour-long queues at the capital’s busiest tube stations, the difficulties of getting staff into work have compelled employers to consider flexible working patterns, with civil servants and bankers reportedly already being told to work from home during the Games. Can employers do this? And what if employees request to work from home to avoid the crowds – do employers have to agree to this?

Employees have the right to request flexible working under a statutory regime that only obliges employers to consider requests from parents of children under 17 and to carers. The Government proposes to extend the right to all employees. This is likely to be confirmed when the Government reports on the outcome to its “Consultation on Modern Workplaces”, which is likely to be in spring 2012, but it is not yet known when this would come into force.

Top tips

1. Start planning now – the earlier employers consider how their particular workforce will deal with the challenges and opportunities of the Olympic Games, the better.

2. Discuss proposals with employees. Be clear and transparent to avoid confusion and poor morale.

3. Create and consistently apply Games-related policies.

A number of larger employers already offer flexible working to all employees, but other businesses extending flexible working may require a change in corporate culture and considerable investment in technology. Below are some of the issues to consider.

Contractual terms

Instructing staff to change their working patterns is contingent on the wording of the contracts of employment. Most contracts specify the employee’s place of work but caveat this with wording such as “but you may be required to work at any other premises at the company’s request”.

Employee buy-in

Employee buy-in is important. Employers with employee forums, unions and representative groups should start discussing proposals now.

Unsuitable roles

Employers should consider carefully whether or not all roles are suitable for home or flexible working. Some roles, for example that of receptionist, simply cannot be carried out from a remote location. Employers faced with this dilemma are reporting that they will either close the workplace entirely and instruct staff to take annual leave or operate reduced hours to allow staff to travel to work outside Games-related rush hours.

Avoiding precedents

Employers have expressed concern that allowing staff to work flexibly during the Games will increase the expectation of such working patterns being granted on a permanent basis in the future. While some commentators (and perhaps the Government) would see this as a welcome legacy of the Games, those employers that do not wish to set a precedent should make clear that changes are being introduced during the exceptional circumstances of the Games and that existing flexible working policies, in line with the statutory framework, will continue to apply after the Games.

Discrimination risks

Employers should avoid showing, or being seen to show, favouritism in granting requests for flexible working in order to limit the risks of costly discrimination claims. For example, if two employees request to work flexibly, one because the additional travel time will mean that she cannot collect her children from school, and the other because he wants to avoid standing on a crowded train for hours, must the female employee be given priority? Such difficulties can be avoided by applying criteria for dealing with applications for flexible working consistently and by reference to the needs of the business. Alternatively, if all staff are permitted to work from home, these problems are avoided entirely.

Equipment and technology

The Cabinet Office has warned businesses that internet services will be stretched during the Games. It is of paramount importance that employees have the equipment and technology needed to carry out their roles remotely. Assuming that employers have the requisite technology in place, productivity and performance should be managed in the same way as usual.

Health and safety

Although they may be away from their desks, health and safety legislation should be applied to those working remotely. Employers are required to arrange an assessment of the employee’s home to identify risks and take steps to limit them.

Most of the issues identified above can be addressed by creating clear Games policies and applying these consistently. This will ease the administrative burden on HR and limit the legal risks for the business.

Laura Evans is an employment lawyer at Fox Williams LLP

FAQs from XpertHR

Comments are closed.