Hybrid working- where do we go from here?

May 10, 2022 | Current Events

Flexible working has once again been thrust into the headlines, with Jacob Rees-Mogg leaving condescending and passive aggressive notes on the empty desks of staff who were working from home, a London law firm asking staff who work from home permanently to take a 20% pay cut and Lord Sugar blowing his top at PWc’s move to a four-day week, calling them “lazy”.  Whatever the headlines, it is clear that the last two years of hybrid and flexible working has permanently changed the working landscape.

Hybrid and remote working policies were very quickly adopted to deal with the challenges of the pandemic, and businesses that had never willingly embraced flexible working before were forced to implement arrangements to allow people to keep working when workplaces were closed.  But now that there are no restrictions on staff returning to the workplace, some employers are revoking flexible working arrangements and reverting back to their traditional ways.

There are a number of genuine reasons as to why an employer may wish to reconsider its position on flexible working, such as the operational needs of the business, underperformance or training requirements of new staff.  However, many employers appear to be overlooking the many benefits that have been gained of allowing a more open approach to flexible working.

Working from home clearly provides many benefits, such as a reduction in commute time and costs, as well as improved positions on work-life balance and childcare arrangements.  On the flip side, there are challenges around productivity and efficiency for some businesses, and concerns that progress is hampered when staff don’t work together in a team.  Employers therefore need to assess the pros and cons of maintaining flexible arrangements and consult with their staff in order to decide what works best for all parties moving forwards.  Motivated staff are productive staff and so employers need to work out what motivates their own staff, as so many people now will choose their next employer based on the flexible opportunities available from the outset.

The law does provide employees with a request for flexible working after they have worked for 26 weeks continuously and the employer must deal with such request within three months, providing one of the nine reasons specified in the Employment Rights Act 1996 should they wish to deny the request.  It is not too difficult for an employer to deny such a request on these statutory grounds and so the right afforded to employees to work flexibly is fairly limited.

In response to the pandemic, the government are keen to make businesses aware that they can agree to short-term arrangements without it becoming a permanent change to an employee’s terms and conditions. This way more temporary arrangements can be made and employers are encouraged to consider any alternatives to the one proposed before turning down any requests.

It has also been proposed that flexible working should be available from day one of employment, but in reality this may not be practical if there is a need for training. Additionally, at present an employee is only able to make a request every 12 months but this is deemed inappropriate now, along with the consideration period of 3 months to deal with requests which is suggested to be reduced.

Ultimately though, the government have made clear that they have no intention of making flexible working the default position nor will they impose a legal duty on employers to advertise their stance on flexible working.

We encourage employers to maintain flexibility where possible, as this will not only increase morale and productivity but also reduce the risk of potential sex, disability and age discrimination claims on the basis that a refusal to grant a request is now likely to be less justifiable.  Also ensure that you have ways to monitor output and productivity (rather than monitoring time spent sitting at a desk) as this will enable you to assess who is underperforming and take the necessary action under a capability procedure at an early stage.

It is advisable for employers to have a home working policy in place from the outset. ACAS provides some guidance on how to structure such policies, and we will continue to support you in creating policies tailored to your specific business needs.