With the potential end of social distancing and full vaccination roll-out on the horizon, many employers are looking at options for bringing staff back to their normal place of work. This on-demand webinar highlights the various employment law issues that need to be factored into this planning, particularly where a hybrid working model is likely to include a regular element of home-working.
Transcript
Jane Fielding: Good morning. My name is Jane Fielding. I am head of the employment labour and equalities team here at Gowling WLG in the UK and I am delighted to welcome you to the first of our series of four webinars, which we now do every year. Hopefully, one day we will be back in person, but this is the second year we have been doing them remotely on hot employment law topics as we take stock halfway through the year.
As I say, who would have thought that a year ago we would still be doing this remotely, but we are. Of course, many people have continued to work in their normal workplace throughout this period, whether they are in healthcare, supermarkets, delivery drivers, and many people have also recently returned to their workplace with the easing of restrictions in hospitality and hairdressers and that sort of environment.
But, for millions of us, like in our firm, and-I am working on the basis of many of you of the five hundred registered for this webinar today, we are now looking at how we work and particularly where we work, once the restrictions are lifted and that brings a whole host of employment law issues with it.
And also employee relations issues. Employee attitudes to work have never been more important and you will probably have in your organisations, a whole host of attitudes. Some people are desperate to get back and sort of metaphorically camping outside the front doors, through to people who really do not want to come back even one day a week, let alone five and you are probably already thinking about how you grapple with that.
Our speaker today, Anna Fletcher, is one of our legal directors in the team. She has got 25 years' experience and with the pandemic I cannot say anymore, she has seen it all because none of us have seen this before but she is going to use all of that experience and knowledge and bring that to bear on this very thorny topic of 'to commute or not commute'.
Anna is going to talk for about 25 minutes and then we should have about ten minutes at the end before we finish at 11:40 for questions? So if you would like to ask a question, please use the Q&A function. If you are not familiar with Zoom you will find a button in the middle of your screen, right at the bottom and if you just type your question into that, I will be keeping an eye on the questions as Anna talks and we will get through as many as we can before we close the webinar.
If we can't get to them, then we will follow up with you individually afterwards. So do not worry, you will get an answer if not today.
If you have any tech issues, then also please put that in the Q&A function and Lucy Strong who is helping us with the tech side of things today will come back to you and try to sort it out for you.
And at the end, before we finish, I will flag again, but we do circulate afterwards a feedback questionnaire which we would be really grateful if you could fill in, but I will mention that at the end as well.
So I will now go mute and stop my video and hand over to Anna.
Anna Fletcher: Good morning. As Jane said, I am going to look at a wide variety of issues which I am sure many of you are grappling with. In terms of our agenda for this morning, very much about what do we know so far? And what do you, as employers, need to be thinking about and its pitfalls as well as possibilities because this is a very exciting opportunity for lots of organisations. And as Jane said, particularly for those who are keen to return to work, but also for those who have embraced remote working as we have become so accustomed to, so those of us who have not been able to go back into the workplace over the last fifteen months or so.
So, looking next at 'what do we know so far?'. Well it is quite apparent, isn't it? That working practices have changed and we can expect to see more of the blended approach. This hybrid working model that we are starting to hear so much about. And it is really interesting looking at some of the data here. The Institute of Directors survey carried out in March revealed that 63% of its members said that they intended to shift from working from home for office based workers for between one and four days a week.
Obviously that is going to depend on your business requirements and the particular needs, for example, of customers and clients but we can see that that is quite a shift in the working practices that might have expected pre-pandemic.
In its latest survey, the Office for National Statistics has shown that 36% of those who are currently working from home think that they will spend most or all of their time working from home remotely in the future. And that is compared to nearly 40% of businesses that expect three quarters of their workforce to return to the workplace.
So you can see there that there is a real potential for disconnect and so, it is going to be very important to engage with your workforces. To understand what they see might work within the business and to be open to suggestions, but of course being mindful of the fact that ultimately you need to make sure that you put in place systems that work for you.
So, we expect to see lots of different scenarios. We think that the office going forward will still be a physical and collaborative space where people can come together, they do their best thinking. But it is likely to be smaller than the environment that we were used to before March 2020.
We might expect to see the home as being a place where people can be more productive and the research shows clearly that people are able to focus on very specific tasks when they are working from home, where perhaps that degree of collaboration is not necessarily required.
And then the idea of a hybrid workspace where you have people who are attending physically while some are logging on digitally and that raises all sorts of challenges about how you manage to retain your culture, how you manage to get people working together, and actually how that is managed actually from the sort of practical perspective.
Our firm, in conjunction with the British Property Federation conducted a recent survey. It is a report that is available on our website but it was very much focussed on the role of the office going forward and of the people who responded, 40% suggested that the office would be a physical space for meeting with clients and colleagues. 31% saw it as being a vital importance to maintaining mental health and wellbeing of employees and 20% said that it was really vital for maintaining a strong team culture, and I suspect that we all recognise that.
And of course we should not lose sight of the fact that what we want to avoid is a two-tier workforce, where those that can work from home are allowed flexibility that simply is not available to those who have to be on site in whatever function they are performing.
Do we think that remote working is a permanent change? Well it really depends what you mean by remote working. Hybrid working, this blended approach to working certainly seems to be of the moment and I think that we can expect many employers to be very focussed on putting in place systems that enable that kind of blended approach, that does seem to be the prevailing desire of many employees.
But from an employee perspective, is this an aberration, to quote David Solomon from Goldman Sachs, or is it an opportunity? You can well understand why somebody may see remote working as not being conducive to particular workplaces. That particular quote was centred on the fact that where an organisation has a very innovative and collaborative apprenticeship culture where you need to have direct mentorship, particularly of grad recruits, actually remote working perhaps does not work quite so well.
But then, we also have other organisations that are on record as saying that this is the sort of approach that allows people to be hyper-productive at home and hyper-collaborative in the office. So very much about bringing the best of all worlds there.
There is clearly still uncertainty amongst employers and you may still be in that category. I think many of our clients and indeed, ourselves as an organisation we are feeling our way through this, trying to work out what is going to work.
The Office for National Statistics has recorded that there is still considerable amount of uncertainty amongst businesses. 32% of those responding to their survey said that they really were not sure what proportion of the workforce would be working from their usual place of work - i.e. the office as it was prior to the pandemic.
And so from an employee's perspective, is this about the better work/life balance? Or actually, can you end up in that situation where this is a blurring of lines. There was a really interesting survey published by the Strathclyde Business School in conjunction with Manchester University back in March - at the end of March this year. Where they surveyed three thousand workers. One in ten of those workers - sorry fewer than one in ten of those workers wanted to return to the office full-time and I think that is borne out by other statistics. But perhaps what's slightly worrying for some employers is that 31% said they would prefer not to spend any time at all in the office.
So that creates all sorts of management challenges. There was also a reflection on the fact that perhaps being sat at home in front of your laptop for potentially quite long hours without moving in the same way we might round the office, going out of the office to go and grab a sandwich. All of the things that we would just take for granted has resulted in muscular physical fatigue and people have also cited mental health and stress as significant issues.
Lots of research that people are working longer hours because of that blurring of lines between home and work. So lots of considerations.
As we move to look at the future ways of working and the employment law considerations which is the next slide, what I am going to look at are a variety of topics. Some of which maybe issues you are already grappling with, some of which you have not yet got to face but things you need to be thinking about.
We have what I have defined as, the reluctant returner. With issues around flexibility including flexible working requests and how those should be managed, equality considerations and in particular reasonable adjustments. How you will approach recruitment and retention going forward and what you might need to do in terms of changes to your paperworks and practices.
Looking next at my reluctant returner. I suppose the starting point in a question that we have been asked is, could an employee actually refuse to return to work on the basis that remote working is now an established working arrangement?
I think the answer is probably not. Clearly the pandemic was unforeseen, lockdown one, March last year was really an unforeseen event where effectively organisations had no choice but to abide by the government guidance that people should work from home where they could do. I do not think that makes working from home a permanent feature of the contract of employment.
How do you deal with the employee who refuses to return to the workplace? And I suppose the most obvious answer is, you need to ask why? And it may well be that employees have very specific reasons that they do not want to return. It could be that they are vulnerable? That they are very concerned that they may still contract Covid, even if they have been vaccinated. They may have a disability which makes them concerned about what the workplace will look like. There may be reasonable adjustments that they require which perhaps has not been dealt with, or in fact they have developed a condition whilst they have been working from home, during the course of the pandemic where there are reasonable adjustments that need to be made and they have not yet had that conversation with the employer.
So, it may be that you need to take alternative approaches, depending on particular circumstances. And in some cases, that might be about allowing the employee to continue to work remotely for the time being.
What do we know about potential claims? Well, employees - and since 31 May this year, this includes workers - have a right not to be subjected to a detriment or to be dismissed for refusing to come to work where they have a reasonable belief that they are in serious and imminent danger.
And that burden is on the employee to prove that. Now, of course you could say that Covid, the Coronavirus itself has been described by the Government as having serious and imminent impact but I do not think that is quite what this means where an employer has actually taken steps to ensure that the workplace is Covid safe.
In those situations the employer may well say that there is no serious and imminent danger because of the steps that have been taken, particularly organisations where we know Health and Safety Executives have been into review and have not raised any concerns.
And do not forget of course the potential for whistleblowing claims and the potential risk of employees making applications for interim relief in circumstances where they have been dismissed. We have a couple of current cases, they are only employment tribunal level- so of course not binding on other employment tribunals, but interesting nevertheless to see the attitude and approach of the tribunals.
First case is Rogers and Leeds Cutting Limited. And in this particular case, Mr Rogers had vulnerable children and he told his boss back in March 2020 that he would stay away from the workplace until lockdown eased because he wanted to protect them.
A month later he was dismissed. He did not have two years' service, so he brought a claim that he had been automatically unfairly dismissed for exercising his rights in the workplace and refusing to return due to what he said was a reasonable belief, that there was a serious and imminent danger.
Now the tribunal found that he had not raised his concerns with his manager. That he had accepted the Covid secure measures that the employer had put in place and those measures allowed him to socially distance and also to frequently sanitise his hands.
The tribunal accepted that because of the safety precautions that had been put in place by the employer, there was no serious and imminent workplace danger of Mr Roger's contracting Coronavirus and as a result, his claim failed.
You can see the evidence that you would need to have to persuade the employment tribunal, so it is really important to make sure that you are satisfied that risk assessments you carried out ensure that your workplace is Covid secure.
And of course all of that needs to be conveyed to the employee so that the employee has confidence that the workplace is secure.
What about situations where you require people to go to other employers workplaces? I think the starting point is, check that the visits are necessary. It may be that they are not, but in this day of Zoom or Teams and so on, there are other ways in which you can deal with client and customer need that does not necessitate a visit to a site.
I would suggest that you obtain details about the Covid secure measures that are in place at that site and then make sure that employees know what to do when they are actually on site.
We have a case that deals with an employer having to deal with an individual who would not comply with the safety requirements at the client's customer's premises.
The case is Kubilius and Kent Foods and in that particular case, Mr Kubilius was employed as a lorry driver. One of Kent Foods' major clients was Tate & Lyle and Mr Kubilius' role was essentially to drive to Tate & Lyle's refinery site. The employer acquired its drivers in its handbook to comply with customer instructions in relation to PPE requirements and Tate & Lyle in fact had a rule that face masks had to be worn at its refinery site by all staff and that included all visitors and visitors were actually issued with face masks at the gatehouse.
So an incident occurred in which Mr Kubilius visited the Tate & Lyle site, he was asked to put on a mask. He was sitting in his cab at the time and he refused to do so. He was banned from the site because of his non-compliance with Tate & Lyle's health and safety rules and the matter of course escalated to his employer. He did not show any remorse, even throughout the disciplinary procedure and the employer concluded that he had committed an act of gross misconduct.
When the tribunal came to look at whether or not that was reasonable for the employer to rely on misconduct as a sufficient reason for dismissing him, they looked at the misconduct, even though it was only a single incident. They looked at the PPE instruction on the client's site. He had not been told that he needed to wear a face mask until he arrived at the Tate & Lyle site, but of course the handbook did say there was an obligation to comply with customer's PPE requirements.
It might have been possible for the employer to have imposed a less severe warning, not to have dismissed him for gross misconduct but obviously that is not the question for the tribunal to consider. The tribunal had to decide whether Kent Foods decision fell within the range of reasonable responses. And given the importance of the Tate & Lyle contract, and in fact also the claimant's continued insistence that he had done nothing wrong, the tribunal concluded that that dismissal was fair.
How can you reduce the risk of claims when you are dealing with a reluctant returner? Obviously carrying out regular risk assessments is vital. Ensuring that you have a paper trail to demonstrate the steps you have taken is important and then, engaging with the reluctant returner so that you can explore the basis of their concerns.
And there are many others ways in which you can incentivise people, to make it more attractive for them to be returning to the office. Only yesterday, The Financial Times reported that the US firm called Steelcase. What they had done at their global headquarters in Michigan in an effort to get employees back into work, was to use entertainment that was in the form of the employee pipe band, a staff blues group, barbeques and the idea was to get people to return to work after a year of working mainly remotely.
It goes without saying that we need to focus on making sure that the workplace is safe but also, perhaps it is about reconfiguring office space to make it more enticing with that sense that there is collaborative space that has been allocated. Making sure that there are quiet places to work. Investing in better technology and perhaps also considering the more practical - so flexible start and finish times for people for example, so that they can deal with any issues they have regarding commuting.
Lots to think about in terms of incentivising people to get them back into the workplace. I am going to move on now to look at flexibility and this of course does include flexible working requests.
Employees have undoubtedly signalled that they are looking for a more flexible approach,. and it is really interesting research from The Boston Consulting Group suggest that flexibility is now second only to pay as one of the most important factors in job satisfaction and that working from home is no longer seen as a perk?
At the moment, we are still in a position where employees have to have 26 weeks service, in order to make a statutory request to work flexibly although the CIPD has been campaigning for some time for that to become a day one right.
Some of you may have seen all the press interest last week, with Downing Street confirming that the government is considering legislation to make working from home the default option? It is not quite as drastic as some of the headlines. An official spokesperson said that there was a flexible working taskforce who are examining how best to proceed. And what they are consulting on, is making flexible working a default option unless there are good reasons not to. So that would mirror - this is the quote - that would mirror the approach to other forms of flexible working such as part-time hours.
But any of you who have looked at the flexible working regulations recently, you will know. Those regulations cover flexibility in relation to hours, times and place of work. So, is this really a change? I suspect actually possibly not but what we might expect to see is an increase in flexible working requests. Lots of research out there suggesting that both fathers and mothers are looking to reduce hours to spend more time with their family. I am not sure if that is linked to the ending of home-schooling. I suspect there were quite a lot of people who wanted to be back in the office at that particular point in time. I know some of my colleagues and myself included, were in that category.
How do you prioritise these requests because that is going to be a practical consideration. We did have the concern, of course, back in June 2014 when the regulations changed that there would be an absolute floodgates would be opened in relation to flexible working requests,and that did not really happen. But here, you may of course have an issue around potential conflicts where you need to balance formal flexible working requests with the new ways of working that you are considering.
ACAS, of course, recommend that you consider requests on a first come first served basis but of course you need to balance the obligations under, for example, The Equality Act so reasonable adjustments to accommodate disability, issues around direct and indirect sex discrimination. Potential for indirect religious discrimination. Not least also, of course balancing with any policies that you implement in relation to hybrid or blended working.
Seems to me that the statutory grounds for refusal will remain the same and actually even though people may be able to point to the fact they work quite efficiently and deliver good quality work, meet client's demands and customer demands and what have you during the pandemic working from home that does not necessarily set a precedent.
And then there are practical considerations around flexible working. How are you going to split the teams. How is that going to impact on performance and quality. Particularly if you have people who benefit from working side by side where they are new to an organisation, so they actually through that process of osmosis, learn quite a lot of their trade.
How will quasi-virtual meetings work in practice? What are the logistics of managing office space? All of these things need to be considered.
Moving onto looking at equalities. There was research that is now a year old from The Institute of Fiscal Studies which show clearly that from a financial perspective, remote working was much easier for those on higher incomes. From a gender specific focus, women fell backwards if you like, with additional childcare and housework falling more to mothers than fathers, especially amongst working parents and all of that risks progress.
In relation to age and ethnicity, those of Pakistani, Bangladeshi or Black ethnicity and those who are younger, were also more affected - in many cases because they worked in sectors that actually had closed, completely. So they could not work from home. And then of course there is the issue about access to enough space, to equipment, the opportunity to work from home which creates its own challenges.
And then, according to the IFS, Londoner's are the most likely people in the country to be able to do their jobs from home. So we need to be really mindful to ensure that hybrid working arrangements do not perpetuate those inequalities? You need to be carrying out your risk assessments, to establish the impact of hybrid working models and the effect that that might have on particular groups of employees, who are most at risk of being disadvantaged by the hybrid working model.
Moving on to consider some of the disability issues and adjustments that you may need to consider. Well, we obviously have the issue around physical disabilities and that is something which may well be very well catered for in term of accessibility to the office. But you have got to think about people with specific requirements - standing desks for example or specific chairs, or IT kit. If you are going to run hot-desking as a way of best using your office space, are you going to carve-out those specific workplaces, those workstations for those who have those adjustments? How are those issues going to be dealt with.
What about physical access to the office and one way systems that are certainly being operated in many organisation at present? Guidance from the Business Disability Forum makes it clear once inside you must not trap workers, particularly disabled people by making it too difficult or time consuming to get out again by lifts or doors. So some real food for thought there.
And then the issue around invisible disabilities. Well colour and contrast fabrics and flooring, quiet spaces, may all help but you do have the issue about where people sit and I will come, in a minute, to talk about anxiety in particular. That this could be something that will apply to people with neuro-diverse conditions as well. You need to think about adjustments that have been put in place for people who are working from home. Will you need to make sure that they have a workstation at home that duplicates the workstation they have in the office.
And then catering for the general sense of anxiety and also for those who are suffering from conditions that might well amount to disabilities. Sharing work areas and unassigned agile environments might not actually work if you have people who cannot focus. So if the work area is too busy or too noisy or they do not know who their neighbours are, that might create real issues and might impact adversely on people in that group.
People may have concerns about getting into work and commuting and we are certainly hearing a lot about this. People are nervous; people have not been on public transport for example for quite a long time. So all of these of things need to be considered and how do you find this out? How good is your data? Are you going to be able to identify easily where adjustments can be made or need to be made?
And this is actually a golden opportunity to engage with your workforces to improve the quality of your disability data and to flush out issues so that they can be addressed proactively, rather than putting in place all your plans and then having to unravel some of them to accommodate people where very obvious questions perhaps have not been asked.
And then looking very briefly on the next slide to the issue around wellbeing. Looking ahead, we do know that we need to protect and support mental and physical health in the workplace. This is not just about compliance with the Equality Act although, of course, that will be a material consideration. This is about raising awareness, about the supports that are in place. This is about engaging with the workforce.
It is particularly around integration of new joiners, it is about dealing with the isolation that some people who live alone and may continue to work alone may face. It is about having regular check-ins with employees as part as part of pastoral care and again, or course, those meetings are likely to be better face to face, if possible. And then just making sure that you have a safe working environment and all of that has been clearly communicated to the workforce.
And then revisit all of the resources that I suspect many of you have put in place over the last 15 months or so. We have learnt a lot, I think, about the need to make sure that we are engaged and alive to these issues to avoid the kind of pit falls that we know arise where people have not got the opportunity to ask for support and the offer of support is not particularly visible.
So moving on to recruitment and retention - arguably we now have a broader talent pool if you do not expect people to be reporting into the office on a really regular day to day basis. There is a potential for a global market. The "can I work from anywhere?" question. That of course creates tax issues, there may be issues around IT and productivity and also of course the issue around the two tier workforce.
And, of course, do not forget that actually that is not the universal truth. In some organisations and some sectors we know that there is a lack of resource. In some sectors the loss of freedom of movement created by Brexit has created a lack of resource and that is particularly the case in hospitality and agriculture.
So when we look at our recruitment processes, are we going to be advertising for roles to be fulfilled on a partially remote or hybrid blended way? Are we going to be clear about the fact that we welcome that as a discussion at the first part of the interview process, rather than waiting until people are appointed and then explaining to them how we want our organisation to operate.
What about interviews? Still face to face? Many of us have done quite well, I think, remotely, but is there an opportunity for a better conversation with the candidate and a better assessment of the candidate? Particularly, if it is not, for example, a promotion where the individual is a known quantity. There may be situations where you need to retain remote interviews, so you need to consider reasonable adjustments to ensure that you are complying with your obligations under the Equality Act. So ask early on in the recruitment process about that.
What platforms are you going to be using? Do you allow somebody a trial run? Do you allow people an opportunity to express the other adjustments that they may need? Do they need extra time to complete assessments? Do they need somebody to help them setting up technology? Do they need documentation in large print? Or would a change in the interview time be helpful? All of the things that we probably were considering before the pandemic, but it just becomes a really important consideration as we build in all these processes to this model of hybrid blended working.
And then making sure that all of the staff who are involved in the interview and selection process have received training, that they understand the importance of equality and diversity and that they are confident when they are carrying out interviews. And then your induction processes - again arguably difficult if you do not have everybody in the office all the time or you do not have a system where you have everybody in the team in the office at the same time. So you need to be thinking about how you on-board new recruits, or even people who work within the organisation who are moving into different teams, for example.
So from a disability perspective we need to make sure that adjustments are in place from day one. So any equipment, for example, is available; it has been delivered; it is sitting at the individual's home, if that... if it is going to be provided at home; it is sitting in the office; they know how it operates; where they are going to be sitting - all of those sorts of things. And actually that might lend itself to the idea that you appoint on-boarding buddies, so somebody to work with the new recruit to make sure that any niggles are ironed out really early on.
And then when it comes to performance management and career development, well managers may need some very specific training on how to manage a fully remote or hybrid workforce, it is quite different from being able to observe people. Picking up the cues, for example, if somebody perhaps does not look particularly happy, or looks particularly angry or disgruntled. If those things are impacting on their performance, when you are sitting with somebody physically in the same space, then you recognise those cues and you can take action.
You need to make sure that managers are equipped with the right skills; you need to make sure that your processes and procedures are focussed on supporting improvements in performance so there may need to be some adjustments to those processes to accommodate this hybrid sort of blended working arrangement.
And then make sure managers avoid the temptation to micro-manage. It is really clear from all the evidence that this makes people feel very exhausted and estranged; it risks the complaints of bullying, harassment and discrimination. People need to feel trusted. People need to feel that they can operate, where it is appropriate, quite autonomously; that they can do their best work and that they can still have career conversations.
And again those career conversations and conversations around performance management may well be better undertaken face to face but, of course, be aware of the risk that if your face to face meetings are always meetings where the bad news around underperformance is going to be delivered, it is unlikely, that when you send an appointment to an individual to come into the office to a meeting, that they are going to be racing in with a big smile on their face. So we just need to be mindful that we need to balance the meetings so that it is both positive in the sense of the career conversation but also you are in a position where you can deliver constructively any issue... any feedback in relation to performance.
And then work allocation and hybrid working, out of sight out of mind - it is going to be really important to make sure that people are given an opportunity to properly engage and that they have proper opportunities to undertake different work, new work and all of those issues so that there needs to be considerable rigger in the process.
And do be aware of bullying, as I say there is an opportunity here where digital platforms have proved quite tricky. We know and love them but we know it is really difficult to identify cues when people are speaking and when you have an opportunity to make your contribution, it can be really easy to over talk; it can be really easy to cut people off without intending to do that. So we just need to be really mindful that that is a particularly important consideration.
And of course people's frustrations can be quite easily vented and you only have to look at my local MP's apology to the House of Commons last week over his exasperation over IT failings. So just be mindful of that. Also be mindful in relation to monitoring. We know that during the pandemic there has been talk of employers purchasing and installing surveillance software to track employees at home, to make sure they are doing their jobs. That obviously could have a really detrimental effect on trust and erode morale and good will, so be really mindful of that.
And, of course, from a monitoring perspective myriad of legal obligations ranging from the European Convention on Human Rights Article 8, the right to privacy through to GDPR Data Protection - all the raft of regulations around investigatory powers and so on; the implied duty of trust and confidence; the Employment Rights Act; and of course, not least, the Equality Act. There are all sorts of risk here.
And then finally moving on to paperwork and practices. Employment contracts - do they need to be updated to take account of hybrid working arrangements? So you might be looking at, how you would define the place of work? How you define hours of work? Salary; benefits; confidentiality provisions; data protection; trial periods and so on. But be aware of permanent change because this is still, very much, a new phase as we emerge from the pandemic. So you are still likely to want to reserve the right to change contracts and also, in particular, to reserve the right to require somebody to come into the office. Not that you will use that all the time but it is important that you have that right.
And then make sure that if you are issuing new contracts they are compliant with the new Section 1 Statement Obligations, but I think I covered it in a review, probably the last time we had a face to face session and if you are not going to do that just be aware of the potential risks. Do you need a hybrid working policy? We know that some organisations already have homeworking policies but perhaps now we need a hybrid working policy.
And then, thinking about hot-desking, think about the time and impact on performance and productivity in finding desks; making sure your booking systems are accessible; making sure there is confidentiality for those who are in roles where perhaps hot-desking is not suitable. So for those of you who are working in HR, it may be actually that it is quite tricky to do some of the work that you need to do where you are hot-desking because actually what you need is to retain privacy and the confidentiality of the information that you are looking at.
Think about remote working packages, perhaps this is a new expression, but do we need to be looking at remuneration? Do we need to be looking at benefits packages? It is a whole topic in itself with issues around contract variation, equal pay and employee relations to be taken into account. And then review the working arrangements that you put in place on a regular basis to iron out any of those wrinkles.
And then one last note would be sort of the lawyers "doom and gloom" really - just be aware around hot-desking arrangements where you have employees who are paid close to national minimum wage or actual national minimum wage. We know that HMRC is likely to treat the time it takes to set up your hot desk and to pack away at the end of the day as working time so we need to make sure that you are not inadvertently tripping yourself up and ending up in a situation where you are not compliant with the provisions of the National Minimum Wage regulations.
So on that really happy note that is my, I suppose, whizz through the key areas. There is a lot to think about here, there is no "one size fits all", that is for sure and that is why I think that engaging with your workforce; looking up what works across your workforce is going to be absolutely fundamental for getting this right.
Jane: Thanks Anna. We have had lots of questions you will not be surprised to hear and we are not going to be able to get through all of them but, as I said earlier, we will follow up as long as you have not asked it anonymously and we know who we are replying to.
So somebody has asked, if we can circulate a copy of the report, you referred to, that we were involved in which we will do to everybody who has attended. And somebody else has asked, what is the source of the survey, that you mentioned, that flexibility was second only to pay? Which I think was the Boston Consulting Group Support, was it not?
Anna: It was, yes.
Jane: So there... some of the questions have been answered already, but there are a couple around working from home and equipment and whether as an employer you have an obligation to provide chairs; desks; IT equipment etc. if you are going to allow people to work from home? So can you pick up on those ones?
Anna: Yes. From our perspective and I would hope that our health and safety colleagues would agree that if you are working from home that is still the working environment, so the obligations to provide a safe system of work will still apply. So yes, if an individual has a particular need then yes it would be quite appropriate for you to provide that equipment and obviously, in many cases, that is likely to be through the suppliers that you already use rather than saying to the individual you know "go and source your own chair" because you are likely to get a better deal using your own suppliers.
Jane: Yes, and there is an allied question which is, how do you advise/ask about any adjustments needed to return to the office? Just a survey or an email? I think we would say a survey would we not? I mean that is what we have done.
Anna: Yes, I think a survey to flush out issues and then obviously to encourage people to kind of pursue that discussion if they feel that you know their response needs to be elaborated on, on a sort of personal level.
Jane: Yes. And then there is a question, picking up on where you talked about flexible working. How do you differentiate between formal flexible working and informal flexible working? And are there are any types of flexible working that cannot be informal? I guess to try and flush out that distinction.
Anna: I think the distinction I was making was between where somebody puts in a formal statutory request that mirrors all the requirements of the regulations, so it is considered on that basis compared to something where it is a conversation perhaps with a line manager about you know a particular arrangement that the manager is happy to accept. There is always going to be tension there though around consistency, so I would certainly advise that you engage... if you are a line manager that you engage with HR to make sure that people are being treated consistently.
And then the more... I suppose the more inflexible flexible... the kind of... what do I mean... situation where it is sort of informal. I mean there is something, I think, to be said that if you have got your own hybrid working or agile working arrangements that that falls into that category, because it is outside the statutory framework.
Jane: Sure, and one final question because I am conscious of time and we are already slightly over the 11:40 cut off. Who needs to be involved if we are developing a hybrid working practice? Which stakeholders in the business, I guess that is getting at.
Anna: I think it is more to disciplinary... I think obviously HR, but also IT, facilities management, managers, senior leaders - so that there is a message from the top about what an organisation is looking to do and why and then you know engage, link with employee forums, if you have them, or directly with employees. But to bring all those groups together and that might also include any diversity and inclusion networks that you have who have obviously the ability to reach out to other people within the organisation and engage through that as a route as well.
Jane: Okay, thanks Anna. So I am going to draw it to a close there. We will send a follow up email with a link to that report that Anna referred to. There will be a recording of the Webinar available on the website in due course, which somebody else asked if that will be available, so yes it will be.
Do fill in the feedback questionnaire if you have time. It will only take a couple of minutes and I say we do read them and find them very useful. And if we did not get to your question and it was not anonymous we will come back to you after the Webinar. If it was anonymous and you want to follow up directly then please do. Our emails are on the website.
And I hope that you can join us for our next session on Thursday, which is also at 11o'clock which is covering TUPE and how to achieve a smooth TUPE transfer. So I hope you will be able to join us for that but otherwise thank you very much for joining today and have a good rest of the day. Thank you.
"Read the original article on GowlingWLG.com".
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
