Is current employment law fit for purpose in the new working world?
The laws pertaining to employment were written in a bygone era of work. We are now in the midst of a revolution in our working practices. Is it time we revised them? Yes, undoubtedly – but what should employers do in the meantime?
The pandemic has upended many existing views about how and where we work. When the national lockdown was implemented, employers and employees became part of a countrywide experiment testing remote working. For the majority of businesses this experiment worked, and many are now looking to make permanent changes.
Employers need to ensure that they act reasonably in dealing with these key issues to continue to inspire trust in their employees.
The next challenge to be overcome by employers is how best to manage flexible working requests and home working more permanently. Unfortunately, our current employment laws are not fit for purpose and may hinder, not help, employers.
So far changes have mainly been implemented informally, sometimes on a week-to-week basis. At some point employers are going to have to decide how to formalise these arrangements, or how and when they return employees to the normal 9am to 5pm pattern.
Flexible working – current rights
Employees with over 26 weeks’ service have the right to make a request to work flexibly for any reason. The ACAS Code of Practice provides guidance on how to manage these requests and employees can bring a claim if their request is handled incorrectly.
The key limitation is that it is a right to request only. Employers can refuse a request on business grounds. Historically, it has been easy for employers to refuse requests. Employers usually only face claims where there has been indirect discrimination against an employee, for example because the request is for childcare reasons.
Flexible working – what’s not fit for purpose?
As is often the case, the law has not kept pace with the change in society. In The Workforce of the Future report, published by Paris Smith in December, Dr Simon Fox, head of law at Solent University, said: “The law will need to catch up. Covid-19 may mark a revolution in how we work. Just as the industrial revolution caused mass migration to cities and then legislation and common law to be developed to match the new social and industrial working practices, perhaps Covid-19 has caused a migration to work from home with associated requirement for legal development”.
The current law contains no real guidance for employers as to how to balance competing requests on a mass scale.
The current business grounds for rejection will also be more difficult for an employer to rely on if the employee successfully worked flexibly during lockdown. Updated guidance on how to consider requests is therefore desperately needed. Now that flexible working has become the norm, if employers act unreasonably when considering requests, greater protection for employees will also be key.
What should employers do?
- Identify: what you can and want to accommodate longer term in terms of remote working and working flexibly. For example, is a certain level of cover needed during core hours?
- Consider: how you will manage requests. Managers should start to gauge whether employees want to change their working arrangements more permanently and how many requests may be received. You could encourage employees to submit requests within a suggested time period to aid your decision-making.
- Prioritise: requests connected to childcare, a disability or other protected characteristics to avoid discrimination claims. After that, come back to your business reasons – which, ultimately, may include a limit on how many requests you can grant.
If remote working is here to stay, employers also need to consider how they will manage home workers on a permanent basis.
Home working – current rights
As remote working is a relativity new concept, there is little specific guidance for employers. There isn’t even a legal definition of a ‘home worker’
What is clear is that the employer still has responsibility for the employee’s health and safety at work, although their place of work is their home. Employers owe employees a duty of trust and confidence and should always act in a way that does not damage that, for example when managing employees.
Home working – what’s not fit for purpose?
Employers need more guidance on their legal obligations towards employees working from home, particularly in terms of health and safety. Clarity is needed as to what reasonable support should be provided to employees, and how issues like monitoring of home workers should be managed.
What should employers do?
Employers looking to continue home working should consider:
- Health and safety: how and when will you conduct a health and safety assessment of employees’ workstations at home? Equipment provided will need to be inspected regularly. Employers should also consider how to ensure mental wellbeing.
- Update contracts: a new home working clause should set out the agreed arrangements, for example, when employees will be required to attend the office and equipment provided.
- Data protection: data protection policies will need updating to reflect the increased risk of breaches and ensure adequate protection is in place, including training for employees.
- Effective management: clear reporting systems will be needed to ensure employees can be effectively managed. Regular reviews should be built in to identify and address any difficulties. Where needed, additional training should be given to managers.
- Fairness: employees working from home should not be denied promotion opportunities and should have access to similar benefits. The same applies in reverse, for example, employers should ensure those coming into the office aren’t bearing the brunt of administration work unfairly.
- Communication: how will you ensure that home workers can work effectively with those that are in the office? For example, do meeting rooms currently have the technology to allow employees to attend meetings remotely?
Employers need to ensure that they act reasonably in dealing with these key issues to continue to inspire trust in their employees. Inevitably when dealing with changes of this level, mistakes may be made and both sides may need to be flexible, including using trial periods. Ensuring managers have the right skills and support available to manage these issues will be key to ensuring success.
Interested in this topic? Read Future of work: what are the priorities for HR leaders in 2021?
Tabytha Cunningham is an associate solicitor in the employment team at Paris Smith. She has particular experience in advising employers on the HR issues they face day-to-day, from avoiding discrimination in the recruitment process, to family friendly rights, disciplinary/grievance procedures and business immigration. Tabytha also helps...