SMELL THE COFFEE!

Our resident legal expert Stuart Farr turns his attention to the thorny issue of employment, and hopes for some clarity on home working in the not too distant future

IT is not often that I touch on the subject of employment. However, after several weeks’ reflection I realised that continuing to avoid it was rather like trying to sidle around a rather large elephant in a very small room. It is time, I reckon, for me to wake up and smell the coffee.

Be assured, this is not an intentional avoidance on my part. The problem lies in the fact that questions surrounding employment nowadays are seemingly stuck in a political quagmire. No doubt the pandemic had a significant impact on this topic too. The need for so many of us to function effectively during the lockdown periods meant that certain traditional concepts underpinning employment simply went out of the window overnight—often never to return.

It now seems to be pretty much established that hybrid working—in its variable shapes and sizes— is here to stay. Working from home is seen by many as a convenient and cost-saving method of working, which has the advantage of offering different lifestyle options for those who engage in it.

Sweet spot

From the employee perspective there was, of course, that relatively brief ‘sweet spot’ in the employment market around the pandemic. Work opportunities within the private sector literally exploded—providing those who had flexibility and a willingness to move with lucrative deals coupled with attractive practical packages. And huge numbers of people flocked to snap those deals up, while others were dropping out of the labour market altogether.

On the flipside, reduced productivity is perhaps hailed as one of the disadvantages of home-based working although, in fairness, whether that is true or not is very much fact sensitive. There are just as many people who say it is more productive overall, especially if one factors in the availability of real costs savings which drop to the bottom line— largely brought about by lower business overheads. An employee working from home doesn’t require coffee facilities to be provided at their employer’s expense, to take an obvious (though modest in financial terms) example.

At least within the sphere of politics, whereas public pay has met with a great deal of consternation in many sectors, the concept of flexible working largely has been greeted with a level of increased support and recognition.

The Employment Relations (Flexible Working)

Bill received Royal Assent on 20 July 2023. It has yet to be implemented through formal regulation, but when it does come into force the concept and accessibility to working flexibly will be broadened. So, what will the new law offer?

• It will permit any employee to make two (rather than just one) requests for flexible working within any 12-month period. Although only one application will be allowed to be ‘live’ at any one time, it will mean that employees can be more reactive to changes in the working environment, rather than having to wait a full year before being re-considered for flexible working.

• Employers will be required to consult before refusing a request. I assume, however, this consultation obligation will extend to all applications and not just those where a ‘refusal’ is on the cards.

• Employers will need to make their decisions in response to flexible working requests within two months rather than three. In theory, therefore, the process should become a little quicker.

• The requirement that an employee must explain, as part of a request for flexible working, what effect the change would have on the employer (and how it might be addressed) will be removed.

Overall, this change alone would seem fairer, especially for those employees who, by virtue of their position or role within an organisation, are unable to understand or have little or no knowledge of the broader commercial picture within which they fit.

While there are no proposals to turn these changes into a ‘day one’ right for an employee, a flexible working request that is made after the initial 26week service requirement can relate to hours, times, location, etc.

Not clear

Sadly, the consultation requirement is vague— which is unhelpful to everyone involved. There is an overall requirement to deal with requests in a ‘reasonable manner’ but otherwise there is a nonbinding expectation that a formal meeting should be arranged with the employee before a request is rejected. At that meeting the parties are encouraged to explore whether there are suitable alternatives available. Meetings are encouraged even where the request is going to be accepted as they provide a use- ful forum for discussing any practical issues which can help to ensure that the change is implemented and managed successfully.

Where a refusal is likely, the employer should take care to provide a business reason for the decision; should provide reasonable additional information to explain the decision; and offer a right of appeal. While none of these are legal requirements, they do help to show that a request has been dealt with in a reasonable manner.

While not directly related to flexible working as such, one irony associated with hybrid working is that, by and large, it is statistically ‘safer’ to be in the workplace. The Health & Safety Executive (HSE) recently reported that 135 workers were killed in work related incidents in Great Britain in 2022/23. This represents a 10% increase on the previous year but is broadly equivalent to pre-Covid years. The industry sectors where most of the fatalities occurred are construction, agriculture/forestry/fishing, manufacturing, and transportation/storage. Other sectors included wholesale, retail, motor repair, accommodation, and food services.

By contrast, it is estimated by ROSPA (Royal Society for the Prevention of Accidents) that there are 6,000 home related deaths due to accidents every year, and that each costs society £1.61 million.

Naturally, these figures are not going to include accidents suffered by the young and the elderly and so it would not be fair to say categorically that an increase in the number of people working from home is contributing significantly to these numbers. However, it does ask the question of how the impact of an accident—fatal or otherwise—suffered by a worker at home should be addressed. It is quite possible that the employee will not be insured—and even if they are, the insurance will not cover an employer’s financial losses.

Reducing the risk of accidents for home workers is not an easy topic to address either. Yes, the regular assessments for display screen equipment can be undertaken, but ‘training’ your employee in how to set up their home safely and avoid accidents borders on the ludicrous. An employer’s ability to control a person’s actions and behaviours in their private home environment is impossible beyond monitoring through the computer equipment supplied. There will be no ‘caution wet floor’ cones outside the loo; no ‘beware, hot water’ stickers on the kettle; no designated fire exits or extinguishers in the hallway; and the fridge may be a haven for notifiable diseases.

Ultimately, home working has become a practical reality and permanent feature of the employment landscape. What needs to happen next is for the parameters and responsibilities between the parties to be explained better and become more clearly and easily defined. This does not often occur in practice. Allowing for flexible working is one thing but making that concept work through appropriate risk management requires both sides to smell the coffee and work together. GTN GTN

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