LAW
BY PETRA VENTON , ASSOCIATE SOLICITOR & EMPLOYMENT SPECIALIST , WHITEHEAD MONCKTON
The New Normal
AS OMICRON LEVELS DROP , IT DOES NOW FEEL THAT WE MAY BE HEADING TOWARDS THE SO-CALLED ‘ NEW-NORMAL ’. I STILL FEEL CONDITIONED TO WEAR A MASK IN THE SUPERMARKET AND AM NOT ENTIRELY CERTAIN IF IT IS OK TO SHAKE HANDS OR HUG , BUT IT IS GOOD TO BE ABLE TO MEET WITH FRIENDS AND FAMILY AGAIN . SO , WHAT DOES THIS MOVE MEAN FOR THE WORKPLACE ?
Many employers will have seen the benefits of remote working over the last two years in terms of reduced overheads and better productivity , but they will also be conscious of the challenges remote working presents when trying to create a workplace culture , encourage collaboration or manage staff . Likewise , some employees will be desperate to return for those ‘ water cooler ’ moments and others will be reluctant to return to the daily commute .
Before the pandemic only 2 % of the workforce worked mostly from home . This has greatly increased . It is anticipated that this shift to hybrid working will stick which begs the question , what do employers need to think about before embracing such a change on a permanent basis ?
Do employees have the right to work flexibly ?
The pandemic has not changed the law on flexible working . Employees who have worked for 26 weeks have the right to request flexible working as long as they haven ’ t made a request in the previous 12 months . Employers have a duty to consider the request and respond to it within a three-month period . There are eight statutory reasons an employer can rely on to refuse a request .
Before the pandemic it was relatively easy for employers to turn down requests provided they could point to an adverse impact on their business . Now employees have been working wholly or partly from home for two years , it is more difficult for employers to show that such working arrangements will have an adverse impact on their business . Employers will therefore have to give greater thought to their reasoning behind a rejection and be mindful of the employee challenging the decision claiming it is discriminatory based on age , sex or disability .
Before leaving the right to request flexible working , I should also mention that changes to this right are in the pipeline . The government consultation on the proposed changes concluded at the end of last year . The key changes that have been proposed are that : the right should become a day one right and not be limited to employees who have worked for six months ; employers should be required to consider alternative arrangements if refusing a request ; employees should not be limited to one request in a 12 month period ; the time for an employer to consider a request should be reduced from the current three month period ; and employees should be able to request temporary as well as permanent changes to their working arrangements . We expect any changes to be brought in later this year .
What do employers need to consider before embracing the ‘ new normal ’?
The move to hybrid working in March 2020 came unexpectedly and was thought by many at the time to be a temporary measure . As employers now consider permanent changes to their working arrangements , they will need to give more consideration to the following :
1 . Are changes needed to the employees ’ contracts of employment to reflect their new working arrangements ? For example , does the place of work or working hours clause need to be changed ?
2 . Likewise , changes to policies may be required and it is a good idea to put in place a flexible working or hybrid working policy to set out clearly what is expected of employees .
3 . Have appropriate measures been put in place to protect confidential information ?
4 . Is a risk assessment required to review the arrangements in place at the employee ’ s home ? Having undertaken such an assessment is additional equipment required to assist the employee in their role ?
5 . What arrangements are in place to ensure the proper management and supervision of employees ?
Just as I am reluctant to go shopping without a mask , many employers may be resistant to change . However , the workplace has changed during the pandemic and most commentators believe the changes are here to stay . Employers need to review their requirements and ensure they have the right policies and contractual wording in place . Furthermore , employers need to communicate with their employees so that they understand the options available to them .
These changes are not easy to navigate . If you would like help reviewing your policies or contracts or just want to discuss your plans for flexible working , please do get in touch .
petraventon @ whitehead-monckton . co . uk 01622 698050
www . whitehead-monckton . co . uk
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