Is flexible working the way of the future?

This September, Britain will recommence its fight to stop Europe making it difficult for our employees to work more than 48 hours per week. The Working Time Regulations 1998 set out exceptions to the limiting 48-hour working week, and many employers rely on one of the main exceptions within those Regulations and argue that their senior executives work ‘autonomously’ and can therefore work as many hours as they want. What will happen if this loophole closes? What if Europe refuses to allow us to ask our middle management and junior staff to sign a document in which they ‘opt out’ of the 48-hour working week? Should employers start to focus less on potential loopholes in the law and more on a business strategy to work smarter?

With a high percentage of office space not being utilised, the threat of transport strikes and the imminent Olympics set to take a toll on London’s commuters and on the environment, employers should think imaginatively and consider extending the right to work both flexibly and remotely to more of its employees.

In a recent speech to the Democrats think-tank, Deputy Prime Minister Nick Clegg said that the Government wanted to examine the option of extending flexible working beyond mums and dads. He talked about extending flexible leave to grandparents or close family friends in order to make it ‘much more common – a cultural norm’.

The law currently restricts the right to request flexible working to parents with children under 17 (or 18 if the child is disabled) and to carers. Sometimes such a request can stall or, at worst, end careers, resulting in an unnecessary loss of talent. It is often sensible for working parents to mention at interview stage that they want to work flexibly, whether it is working four days a week, asking for a job share partner or leaving on a certain number of days to collect children from school.

An employer is fully entitled to refuse such a request on the basis of a ‘genuine business ground’ such as the negative effect on customer demand, quality or performance, or the effect of additional burdens on existing staff.

On the other hand, flexible working can instil loyalty in workers and improve staff morale. This is often seen by management as a ‘nice’ employee relations exercise. There are many positive business advantages of flexible or remote working, and real-life examples illustrate the benefits. Some employers are extending the option of flexible working in a manner which goes way beyond the current legal remit.

Remote working does not mean working from a kitchen table surrounded by noisy children and builders. It means working anywhere that is not the firm’s physical office, assisted by the use of skype, facetime and video conferencing to discuss matters with colleagues and clients. Employers often argue that they cannot be certain their employees are working hard. I remember one of my former colleagues saying that he liked to have his employees where he could see them working. However, there should an element of trust in every employment relationship. Unproductive people will find ways to procrastinate irrespective of whether they are working remotely or gossiping with colleagues in the office. These issues can often be managed through appropriate HR procedures.

Remote working has the potential to provide an employer with access to new markets. If your employee wants to spend a couple of hours after school with their child to assist them with their homework, coach a sports team every Wednesday afternoon or pursue a passion for music by giving regular piano recitals, then why not let them take the afternoon off work and reach your American client market for four hours that evening? This can potentially deliver a better and extended service for clients in this age of amazing technological advancement.

Remote working can also have an additional benefit by reducing sick days. According to a study of 24,000 IBM staff world-wide, employees who worked flexibly were able to work an additional 19 hours a week before they experienced the same levels of stress as those who did not work flexibly. Reducing current levels of sickness is a key issue for any employer, and the positive effects of flexible and remote working could therefore result in a win-win situation.

While the upcoming Olympics will bring passion and excitement to London and the whole of the UK, it also brings its own set of employment challenges. Client demands will not cease whilst Bolt runs the 100 metre race. Some employers plan to ask employees what they want from the Olympics. Treat them as grown-ups and reach an understanding that they can, for example, watch certain races if they wish as long as clients, suppliers and colleagues are unaffected and hours worked are maintained at target levels. There are many positive side effects that can result from the Olympics, such as client and supplier bonding events, or a team building event with a communal screen at the office.

Employers are being encouraged by the Department for Transport to manage the impact of an extra one million passengers hitting our busy transport systems over the Olympic fortnight. Staggering hours and working from home are obvious solutions to enable customers and clients to be serviced when they need immediate assistance, rather than making them wait for staff to travel an extra hour to reach a desk in an office.

Remote working can also reduce the need for expensive office space. Companies, like BT, allow staff to vary their hours for a range of different reasons, which has reduced the need for office space. BT claims to have saved £500 million. Remote working reduces what is often considered to be ‘dead commuting time’, especially when individuals need to change their mode of transport a number of times in one journey in order to reach their office.

But what about the environmental impact? It is said that 22 per cent of UK domestic carbon emissions are from traffic. The government is currently considering legislation to reduce parking spaces at work, with Nottingham leading the way and imposing a ‘Workplace Parking Levy’. With the ongoing focus on reducing carbon emissions, remote working is a pragmatic solution, and may well impress employees and shareholders.

The Government has re-commenced the fight to prevent Europe from making it difficult for our employees to work more than a limited number of hours each week. Trade unions and employer organisations (collectively called ‘the social partners’) are trying to reach an agreement on ‘working time’ issues by September 2012.

The main debate in Europe relating to the Working Time Regulations is whether or not Europe will allow UK middle management and junior staff to sign a document, often attached to an employment contract, in which they agree to ‘opt out’ of the 48 hour working week. Although it is often hard to exceed the 48 hour working week (as it applies over a rolling 17 week reference period), the fundamental aim of the restriction is to protect workers from the health and safety consequences of overworking.

Meeting customers, clients and colleagues face-to-face is hard to beat and should always be encouraged. There may be other perfectly sound business reasons for an employer to reject a request for flexible working including:
• additional cost;
• detrimental impact on quality or performance; or
• planned structural changes.

However, employers, whether large or small, should think imaginatively. A strategic business decision that is led by members of management who want to embrace the benefits of ever-changing technology, could change the workforce of the future.”

Ronnie Fox is the Principal of Fox Solicitors, a niche firm specialising in the law relating to employment, partnership and discrimination.

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