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Why Providing Flexibility Could Cost Companies Dearly
September 8, 2020
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BY Musab Hemsi

There is no doubt that the COVID-19 pandemic has drastically accelerated the shift towards more flexible working practices across the economy.

Remote working was a simple necessity at the start of the pandemic, but it’s clear that many of the habits we’ve adopted during this period are here to stay.

For employees, this brings many benefits, with better work-life balance, more free time and less money spent commuting. Meanwhile, employers may be able to reduce their reliance on expensive office spaces.

However, many employers will not be aware of the potential legal implications of how they handle requests for flexible working as we look beyond the pandemic. Here’s what employers need to know.

In 2014, the rules on flexible working were changed to enable employees with over 26 weeks’ service to request a change to their working hours, the times they work and their place of work.

This legal framework is underpinned by a statutory regime, which requires employers to formally decide on any request for flexible working within three months of receiving a request. This process can be extended by agreement with the employee.

Legally, there are only a handful of reasons an employer can refuse a request for more flexible working. These mostly relate to an impact on customers, colleagues and their ability to carry out the work within the new arrangement.

However, many employees will have found that their ability to carry out their work has not been compromised while working remotely during the pandemic. In fact, many have reported an increase in their productivity, with more flexible working arrangements. In light of this, employers should be aware of the possibility of appeals if they refuse applications on these grounds.

Another legal nuance employers should be aware of is that mishandling requests for more flexible working could expose them to unlawful discrimination claims.

This is especially true in relation to employees who have childcare or disability issues that restrict their ability to work in accordance with traditional working practices.

If a decision to refuse flexible working arrangements to an employee has even an unintended effect of discriminating against that employee based on a protected characteristic, employers may find themselves in hot water.

For example, refusing a disabled employee the ability to work flexibly may count as unlawful discrimination if the employer’s premises are not designed to accommodate wheelchair users.

It’s therefore key to have a positive dialogue with employees who request flexible working and to understand their reasoning. This results in both better outcomes for the employee and protects the employer from the risk of potentially costly and time-consuming legal consequences.

Ultimately, employers should work to ensure that they have a robust and comprehensive system in place to handle requests and ensure that managers are well-placed to take decisions with proper business rationale, while enabling employees to set out their case for flexible working.

Unfortunately, we find that many employers approach flexible working requests with a closed mind. This is usually an error, and employers would be far better off maintaining a constructive dialogue with employees who make flexible working requests and trying to accommodate their requests.

The COVID-19 pandemic has opened the eyes of many businesses to the potential of drastic changes in working practices without compromising on the quality or quantity of work. As we look to the future, employers would be wise to consider the potential of embracing flexible working in a way that benefits both the employer and their employees.

Musab Hemsi is partner at LexLeyton

UK Faces a ‘Tsunami’ of Unemployment in the Autumn
September 8, 2020
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The TUC is encouraging the government to create a new job protection and upskilling programme as the Job Retention Scheme (JRS) comes to a close next month.

Tuc Union

Following Bank of England predictions that 2.5 million people could be out of work by the end of the year, the TUC warned the clock is ticking to avoid a “tsunami of unemployment” in Autumn.

It said the government risked throwing away the good work achieved by the JRS and has therefore created a new short-time working scheme designed to prevent mass unemployment and help firms bounce back after the crisis.

Short-time working is where employees agree to or are forced to accept a reduction in working time and pay.

The Job Protection and Upskilling Deal also focuses on helping workers whose jobs are at risk to develop the skills they need for the future.

The TUC recommended businesses receive a 70% subsidy from the government provided they bring back every worker on the scheme for a minimum proportion of their normal working hours.

Any worker whose employer needs them to work for less than 50% of their normal hours would receive free reskilling training.

Employees would also receive 80% of their salary for the hours they are not in work, including when they are training.

Companies would only get help if they can demonstrate they have been hit by coronavirus restrictions, pay their fair share of tax in the UK, boost workers’ rights, pay staff fairly and do not pay dividends while using the scheme.

Frances O’Grady, TUC general secretary said working people must not bear the brunt of the recession.

“Protecting decent jobs with fair pay is how we recover. The job retention scheme showed what government can do during a crisis. It saved many people from the dole queue and stopped good companies going to the wall.”

Ben Willmott, head of policy at the CIPD, said there was need for the government to consider additional support for employers once the furlough scheme had closed.

“The sort of short-time working scheme proposed by the TUC has a proven track record of supporting employment in other countries and could help employers hardest hit by COVID-19 to continue to minimise redundancies, particularly in the event of significant local outbreaks or a full blown national second wave over the winter.

“The focus on upskilling is also crucial at this time but many workers who would fall outside the remit of the TUC’s proposed scheme also need support to train so we think that it would make more sense to significantly expand the National Retraining Scheme for this purpose.”

The plan also has built-in contingencies for companies hit by local lockdowns, with companies in this situation automatically qualifying for help through the scheme.

In Austria, unions and employers have extended their coronavirus short-time work scheme for another six months and in France, this will be extended to June 2022.

Agata Nowakowska, area vice president at Skillsoft, said a short-time working model and retraining could help us better prepare for jobs of the future.

“As the war for talent intensifies in the post-pandemic circumstances, employee development and talent pooling will become increasingly vital to building a modern workforce that’s adaptable and flexible.

“Addressing and easing workplace role transitions will require new training models and approaches that include on-the-job training and opportunities that support and signpost workers to opportunities to upgrade their skills.”