Leaving Lockdown: Considerations for Employers – Part 1: The Future of Work

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“The end of 9 to 5?” “Goodbye the long drive?” “Hello homework?”

As we exit the lockdown and look to the future of work, now is the time for employers to reflect on how they will shape their organization’s work culture and practices, and to what extent they will retain remote or flexible work practices and forgo expensive offices. .

We are already seeing that there is no “one size fits all” approach. Amazon and Goldman Sachs are returning to a “desktop-centric culture”, unlike JP Morgan’s plans to continue remote working and Spotify’s “Working from Anywhere” policies, which will give employees the choice to work full-time ever since. home or office or a combination of the two and with more flexibility in their geographic location.

In the first part of our “Exit lock“We are examining employer options in light of key legal and practical considerations.

Key battlefields

There are many competing interests that an organization must take into account when planning ahead; savings on real estate, employee well-being and morale, the need for employee supervision and support (especially for junior team members) and, most importantly, what the competitors are doing. In the post-COVID world, employees will take flexibility for granted, and the need to achieve it will become an even more valuable recruitment and retention tool.

One of the main battlegrounds will inevitably be the employer’s preference to return to an office culture over shrinking real estate footprint, as HSBC and Lloyds Banking Group have confirmed their intention to reduce office space. by 40% and 20% respectively over the next few years.

In making these decisions, employers should understand the labor law framework in which their businesses operate, which includes the following FAQs.

Do employees have the legal right to work remotely?

In short, no, unless a contractual right is offered under an employee’s terms of employment.

While employees do not have the right to work remotely or flexibly, if they have at least 26 weeks of continuous service, they do have the statutory right to apply for flexible work (once every 12 months). ) which may include changes in working hours, where they work from and when their work is completed.

Employers are required to carefully consider each request for flexible work and can only refuse if the reason falls within one or more of the eight business reasons provided for by law. These business reasons are very broad. The reasons include: the burden of additional costs; an inability to reorganize the work of existing staff; a negative impact on performance or quality of work; inability to meet customer demand; inability to recruit additional staff; lack of work to be done during the proposed working hours; or planned business changes.

Since many people have indeed adapted to remote working, it will inevitably be more difficult to justify refusing flexible work requests in their entirety unless there are particular issues or inefficiencies, and refusals may. have a negative impact on employee morale. Employers have three months to complete the process from start to finish.

Any abusive denial can lead to claims for up to eight weeks’ salary, currently capped at 544 per week or, more often and more worryingly, possible discrimination claims (depending on the circumstances) that are not capped.

What should employers do to prepare for an increase in flexible work demands?

To prepare for the expected surge in flexible work demands, employers should ensure that they have a strong flexible work policy and a work from home policy in place. This can mean implementing new policies where none previously existed, or revising current policies to ensure they are up to date and complete. Work from home policies should aim to ensure that employees are clear about working from home and should set expectations and guidelines to ensure work efficiency, supervision and protection of confidential information and data.

Can an employer require employees to work primarily or entirely from home?

Some employers want to take advantage of working from home, but can they make it a requirement for their employees?

To answer this, employers will need to look at the conditions set out in an employee’s employment contract, in particular a “place of work” clause. If the terms of the employment contract provide for the person to work in an office, this could constitute a contract amendment to require that they become primarily or entirely home based. As always, contract changes require employee consent and legal advice should be taken before changing contract terms, especially if it affects a large number of employees, as collective consultation obligations may be triggered.

It will be important for an employer to consider any changes over the past year (i.e. working from home) and whether these were or are express or implied changes to the employment contract, and carried out on a temporary or permanent basis. Many of the changes were made overnight given the nature of the pandemic and without the documentation or processes that would usually accompany these changes. Employers should review current arrangements and communications to take stock of their current position and help them plan effectively for their future.

What are the key issues with working from home?

If employers want to continue working from home, they need to make sure that they have thought through a number of associated issues that may arise, some of which are highlighted below.

  • Data protection and confidentialityy – how can employers ensure that confidential and sensitive data is handled appropriately, secure and protected?
  • Salary weighting – how do employers approach issues of salary levels (eg would employers still apply a pay raise in London if the employee moves from London and works remotely)?
  • Employee well-being – some people struggle with a sense of isolation and their mental health is affected by the lack of face to face interaction that permanent home working brings. How should employers handle this?
  • Health and safety obligations – an employer’s health and safety obligations extend to those who work from home. Have the relevant job postings been carried out?
  • Performance and development – working remotely can make it difficult for employers to identify problems or to accurately assess the performance of their teams. Employers should spend time planning how they manage performance and development remotely (check out our upcoming podcast on this topic).
  • Insurance – have employers checked that their employers’ liability insurance covers the activities of homeworkers?
  • Expenses, fees and allowances – what costs incurred by working at home should be borne by the employer? Do employees know which expenses are tax deductible?

Employers should be aware that working remotely from abroad raises a myriad of additional issues to consider (e.g. taxation, local employment rights). We’ll cover this topic in a future podcast, so look for this landing in your inbox.



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