Flexible working post COVID: a whole new dimension

The gradual easing of lockdown restrictions over the past few months has been a welcome development for most, but it also signals the end of a period of enforced homeworking for many people, writes Sam Greenhalgh, senior associate, Birketts LLP. 

Some employees can’t wait to get back to the workplace whilst others wish to maintain home working in full or in part. Usually employers and employees can agree between themselves a working pattern that works well on a relatively informal basis. 

However, if an informal agreement can’t be reached then employees can bring formal flexible working requests which places a positive obligation on the employer to consider the request and provide reasons if they wish to turn it down. 

Individuals and employers will be keen to capitalise on the benefits that homeworking can provide. 

For employers, reduced office overhead costs, increased business resilience and skills retention are obvious wins but there are a number of legal and practical considerations to take into account:

Flexible working v agile working

It is important for employers to deal with any formal flexible working applications, which are submitted in accordance with the statutory framework, fairly and lawfully. 

A flexible working policy is helpful to ensure decisions are consistent and to avoid future allegations of unfairness or discrimination. When any agreements are reached it is advisable to confirm the details in writing to avoid any ambiguity. 

Agile working may be a more appealing option, allowing employees to vary their working patterns and locations on a more temporary basis, from week to week. Again, it is recommended to have a written policy in place to clarify procedures and outline the level of flexibility allowed.

Do I need to amend employment contracts?

Tailoring employment contracts is an important consideration, especially for more permanent arrangements. Employers are advised to provide or amend certain contractual provisions in writing, such as work location and hours, but more practical provisions regarding a home workers’ expenses, insurance and the provision of equipment are also worth setting out in writing.

Are there health and safety considerations?

Another consideration is reviewing the potential health and safety implications of agreed arrangements, including carrying out a risk assessment and determining whether special equipment needs to be provided to employees who are working from home. 

It is helpful for an employer to have a health and safety policy that specifically addresses home working to comply with their statutory duties and common law duty of care.

Are there data protection considerations?

Home working does not exempt employers from their data protection obligations under the General Data Protection Regulation (GDPR) and the Data Protection Act 2018 and it is important they take steps to protect confidential information and personal data. When employees carry out work from home, data may be more vulnerable to external risks as well as human error and IT support may be more limited.

Monitoring employees is another common concern as supervision and management opportunities are more limited. Although there are a number of technologies available to measure productivity and efficiency remotely, it is important for employers to properly consider the impact that these may have in respect of data protection legislation. 

• You can call Sam on 01603 756467 or drop him an email at: sam-greenhalgh [at] birketts.co.uk