Flexible working after COVID; Will a four-day working week become the new normal?

The world of work has changed significantly as a result of COVID. Many organisations are looking to create a different working environment that enhances staff wellbeing.

This has resulted in some companies adopting full-time remote working, hybrid working models or allowing employees to choose where they want to work.

This month also sees the largest ever four-day working week pilot in the UK, with more than 60 companies participating in the scheme. The pilot is being organised by 4 Day Week Global, a not-for-profit community that supports organisations taking on a four-day working week but for no loss in wages. Companies involved in the pilot range from office-based software developers, housing associations and recruitment firms to a local fish and chip shop. The experiment is part of a worldwide pilot with similar, smaller initiatives taking place in Ireland, the US, Canada, Australia and New Zealand. The principle behind the scheme is that workers are able to be 100% productive in 80% of the time.

However, not all organisations are taking the opportunity to keep remote working models in place and for workers including front-line staff and healthcare workers or workers in the retail industry, working remotely is not possible. There are also many professions where a four-day working week is simply not a realistic option due to strains already placed on time and output. For example, Doctor’s surgeries are struggling to find enough appointments for patients and it would also be difficult to see how someone working within the hospitality industry could serve more customers, to achieve higher productivity in a shorter period of time.

Given that one size doesn’t fit all, and many organisations are taking different approaches to remote or hybrid working options, it is no wonder that the potential for disparity in treatment and/or people feeling aggrieved, and conflicts arising is on the rise.

In this article, Hatch Brenner Solicitors’ Employment Law expert, Dionne Dury, examines the legal framework around flexible working rights and what the Government is considering regarding changes to that framework. Dionne also explores many of the challenges that we are hearing from our clients, regarding the implementation of hybrid working models, as well as tactics that employers can implement to help minimise conflict arising in this area.

What is the current regulatory framework for flexible working?

Flexible working can include a number of different ways of working including flexible hours, condensed hours, part-time working, hybrid working and job-share arrangements (to name a few).

Currently, flexible working is only available to employees who have been employed for at least 26 weeks. To make a request for flexible working, the employee needs to put it in writing. Once they have done that, the following applies:

• The employer has three months (which can be extended by agreement) within which to consider the request, discuss it with the employee (if appropriate) and notify the employee of the outcome.
• The employer must deal with the application in a reasonable manner.
• The employer can only refuse a request for one (or more) of the eight reasons set out in the legislation,
• The employer may treat the request as having been withdrawn by the employee if, without good reason, the employee fails to attend a meeting arranged to discuss their request and a further meeting rearranged for that purpose,
• The employee can complain to a tribunal if the employer:
  • fails to deal with their application in a reasonable manner,
  • fails to notify them of the decision on their application within the decision period,
  • fails to rely on one of the statutory grounds when refusing their application,
  • bases its decision on incorrect facts, or
  • treats the application as withdrawn when the grounds entitling the employer to do so do not apply.
• Only one request can be made in any 12-month period.

What changes are on the horizon?

The Government launched a consultation “Making Flexible Working the Default” which ended in December 2021. The consultation set out five proposals for reshaping the existing regulatory framework so that it better supports the objective of making flexible working the default.

It considers:

1. Making the right to request flexible working a day one right.
2. Making changes to the eight business reasons for refusing a request.
3. Requiring the employer to suggest alternatives to the arrangements suggested by the employee.
4. Changing the administrative process underpinning the right to request flexible working.
5. Raising awareness of the existing right of employees to request a temporary flexible working arrangement.

It is likely that any changes to the flexible working regime will be included in the forthcoming Employment Bill, so watch this space for further updates.

What are the current challenges?

Certain sectors and industries are more suited to flexible working arrangements than others e.g. office or desk-based roles which are not customer-facing. There is certainly the potential for employers to indirectly discriminate against individuals with protected characteristics in refusing hybrid working or not having a consistent approach to implementing such working practices. There are also concerns about remote workers not being afforded the same opportunities as office-based staff.

Useful tips for employers

Below are some useful tips for employers when considering handling requests to work flexibly or making changes to remote working practices post-pandemic.

1. Consult with staff – before introducing any significant changes to working practices make sure that you consult with members of staff and seek their views on such changes. This will help in understanding if particular members of staff are going to have difficulty with any proposed changes. E.g. due to caring responsibilities or medical conditions, to potentially avoid complaints of unfair treatment. It will also allow for informal discussions regarding flexible working options and what would work for individuals balanced against meeting business needs.
2. Regular communication with remote workers – if you are continuing to operate remote working practices or hybrid working arrangements, it is important to ensure regular communication with remote workers and that the level of communication is consistent with that of office-based staff. E.g. if meetings are being held in the office, remote workers are invited to join those meetings via remote platforms such as Zoom or Microsoft Teams.
3. New policies and training – introduce policies or review/refresh existing policies around home working/flexible/hybrid working arrangements. Provide training on those policies to staff and managers to ensure that home-based staff are given the same opportunities as office-based staff regarding pay and progression opportunities.

Whilst there are challenges to be faced with having a more flexible approach to working practices, evidence suggests that such practices can increase productivity, staff morale and improve retention.

If you require further advice or assistance on any of the matters raised in this article you can contact our Employment Law specialists and Workplace Mediators on 01603 214 220 or email [email protected].