Make flexible working work – the legal bit

As the UK heads back into offices and places of work, many businesses are implementing a flexible approach where staff can continue to work remotely for part of their working week. Employees are now aware of how it is possible to work effectively from home and have learned how to use the technology that supports them to do so. They may have found that they have personally benefited from working from home, perhaps through reduced commuting time (and associated costs) and an improved work-life balance. So, how do we make this work for the future?

Employers should be prepared for an increase in flexible working requests in the months to come, both as a result of the pandemic and following legislative changes. Where you are willing to see this increased demand as an opportunity, you may be able to harness a number of business and employee benefits including increased productivity, talent acquisition and retention, employee wellbeing and engagement. However, there are a number of key areas for consideration.

Some of these working arrangements may differ from those set out in employees’ contracts of employment. Employers cannot make unilateral variations to the terms set out in employee contracts, even when such changes are temporary: to do so would amount to a breach of contract. Even when a contract has a clause allowing employers flexibility to change working patterns, care should be taken as such clauses must still be used in a reasonable way and must not discriminate against any employee with a protected characteristic under the Equality Act.

There are several ways that a contract may be changed but the most effective of these is usually to do so by agreement.

Employers who wish to introduce changes to ways of working should:

  1. Communicate proposals clearly to all employees, setting out as much practical detail as possible and how long any such changes are likely to last
  2. Brief managers fully on the proposals, including how to respond to employee concerns and questions
  3. Include trade unions or employee representatives in discussions
  4. Seek feedback from employees and provide a way for them to ask specific questions or make suggestions
  5. Identify employees who may be particularly vulnerable and engage specifically with them, either directly or by creating a group of employee representatives.

The specific personal circumstances of employees should always be taken into account: some employees may be unable to change their working hours for a variety of reasons including childcare or family responsibilities. Care should be taken not to discriminate.

Following communication and feedback, the proposals for change should be set out formally in writing to employees and their explicit agreement for change sought, through an amendment to contract. Where agreement is reached, employers may implement the changes: they should keep any new working patterns under review and be prepared to change them as the situation evolves or if Government advice changes.

Where employees do not agree to the changes there are other options open to employers, including imposing the changes unilaterally or terminating the existing contract of employment and offering re-engagement on new terms. These actions should be a last resort in the current circumstances and any employer considering such action should take advice before doing so.

Feel like you could do with some more advice on this? Then contact our trusted partners Greig Melville HR. Call 01324 628676 or email hr@greigmelvillehr.co.uk to see how they can support your business.