The end of 9 to 5 office working?

By Jeanette Wheeler, Birketts

The standard 9 to 5 working day has dominated the office-based labour market for years, but could this tradition be coming to an end, and how do existing legal obligations fit with a greater appetite for flexible working practices?
Published in Norfolk Director Magazine, Summer 2021
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Legal: Birketts LLP

Throughout the pandemic, most staff have adapted to working from home and it appears that many want to retain the benefits of doing this, even after all restrictions are lifted. Employers have also realised that working remotely can be a viable option, but retain concerns about lack of supervision, reduced productivity and fewer opportunities to enhance cohesion with a dispersed workforce.

Going forward, employers will need to consider how best to encompass greater flexibility and how existing policies and procedures need to be revised, in order to deal with what could be a significant shift in the proportion of individuals seeking to work remotely.

The statutory right

The statutory right to make a flexible working request applies to all employees with at least 26 weeks’ continuous service. The request must be made in writing and can only be made once in any 12-month period. It covers all forms of flexible working including changes to hours and times worked, and the place of work. The statutory scheme is supported by an Acas Code of Practice and Acas guidance. Employers have three months to consider the request, discuss with the employee and notify them of the outcome. This period can be extended by agreement.

Refusing a request

A request for flexible working under the statutory scheme, including home working, must be dealt with by the employer “in a reasonable manner” and can only be refused on one of the prescribed grounds, which includes factors such as detrimental impact on quality or performance, or ability to meet customer demand.

The scheme does not expressly provide for a trial period of a new flexible working arrangement, although Acas suggests that employers might want to consider this before confirming or rejecting a request. Of course, the pandemic has arguably provided an extended trial period of home working for many, potentially making it harder for employers to reject a formal request going forward, unless they can demonstrate that the arrangement will not work for one of the prescribed reasons. Employers should also bear in mind that a refusal to allow flexible working, even if legitimately rejected on one of the statutory grounds, can still amount to unlawful discrimination based on an individual’s sex (for example, if they have childcare responsibilities), disability, religion and belief.

Best of both worlds?

The compromise might be a flexible combination of remote and office work – the hybrid-working model and many businesses are embracing this agile approach.  

Employers who consider adopting hybrid-working must ensure that their policies and procedures, as well as contracts of employment, reflect a greater proportion of the working week spent away from the office. This will include homeworking policies, IT and data security, and health and safety procedures, as well as facilitating effective day to day management of remote staff.  

Birketts employment specialists can support employers in ensuring that future remote working arrangements are legally compliant and properly documented.

Jeanette Wheeler is Partner at Birketts LLP. T: 01603 756427 E: jeanette-wheeler@birketts.co.uk

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