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The concept of agile working focuses on work as an activity rather than a place. It embraces both the physical and digital workplace to support people to work where, when and (to some extent) how they wish to do so to maximise their productivity and deliver best value to the organisation.
Our checklist sets out the principle legal issues that you need to consider before adopting agile working.
1. Decide what your concept of agile working means
Agile working can involve a range of different ways of working – from allowing workers to work from home (or elsewhere), introducing hot-desking or new technologies. However, usually it’s about more than doing the same work at a different time and/or place – it’s also about approaching work differently. This may involve developing new and unfamiliar operating models.
2. Are you going to change the whole way the business works, or limit it to certain groups?
Introducing wholesale changes can cause significant disruption and unsettle your workforce, unless it is managed carefully. Introducing agile working will require a culture shift away from the traditional measures of time and attendance, to one that is focused on results and performance. You will need to consider how employee performance will be assessed (and how often you will measure this) and how staff can access support if they are struggling to adapt. During the early stages, it may be sensible to schedule regular reviews to make sure that your staff are on track to meet their targets (rather than catching up on box sets!) That way, you can address concerns at an early stage and, if necessary, performance manage individuals who are under achieving.
If you are considering rolling out a programme of change across the whole business, it may be sensible to establish a pilot group to trial it first. The pilot group will be able to consider what works or doesn’t work and the business can adapt its approach to reflect feedback. It may be important to set out the conditions of the trial, when and how it will be considered a success or failure and what the consequences are of each.
3. Who is going to manage change?
Some organisations engage “change managers” to help manage the process. Change managers will help to persuade people to put in the effort to learn and apply a new way of doing things and develop trust.
If your managers are responsible for driving the process, they must understand what you are trying to achieve and “buy in” to it.
Change will not happen spontaneously and whomever you appoint will need to provide encouragement and support to help people change the way in which they work.
4. Are the changes optional?
If you are simply considering allowing some or all of your staff to work from home from time-to-time, or wish to encourage a flexible hours culture then all you really need to do is explain why the business wants to encourage new ways of working and how staff can apply. It is generally better to communicate this message personally, perhaps at team meetings, rather than writing a policy which then languishes on the intranet or in the employee handbook.
If you want your workforce to have choices about how and when they work, you should make it clear that it is open to everyone – not just to those with childcare or other caring responsibilities.
However, if the changes you wish to introduce are not optional and require your workforce to work at a different location (perhaps from home), adopt different hours of working or involve other significant changes to their terms and conditions of employment, you will need to consult with affected employees before making any changes (assuming you are not simply going to impose the change and take the legal risks associated with that). You may need to reach agreement with each employee.
5. Consult with employees
If the changes you wish to make affect 20 or more employees over a period of 90 days or less, you may need to go through a process of collective consultation. This must take place in good time before any change takes effect and minimum periods apply. If less than 100 employees are affected, the minimum period is 30 days, and it's 45 days where 100 or more employees are affected.
You'll be expected to consult with a trade union (if you recognise one). If you don’t, you will have to consult with personal representatives and, if you don’t already have any, you will need to go through a process to elect them. All this takes time and will need to be factored into your plans.
You must provide the representatives with information about the changes you wish to make and try to reach agreement about how to implement these. If you have a strong business reason for changing the way you wish to work and have explained how this will benefit the business and provide staff with flexibility you should not get too much “kick back”. Although, you don’t have to reach agreement – it will be in your best interests to do so.
One other thing to note: where the duty to collectively consult arises (which arises only where there is a “proposal to dismiss” when consent is not provided), employers have a corresponding duty to give advanced warning to the government of any impending redundancies by completing a form known as “HR1”.
6. Agree changes
Once collective consultation has finished you will need to meet with all affected employees individually and seek their agreement to the change. If they will not agree, you will have to consider dismissing them. If you do dismiss the reason will be redundancy (this is because redundancy is given a wide meaning in this context) and staff who have worked for you for at least two years are entitled to a redundancy payment. You must give the employee the opportunity to appeal against their dismissal.
Dismissing an employee who will not agree to changes in their terms and conditions of employment is potentially very risky and you should seek specific legal advice to minimise the risk of receiving claims for unfair dismissal.
7. Change contracts of employment
Once you have reached agreement, you will need to change staff contracts of employment to reflect the new working arrangements. If your staff are allowed to work from home, their contracts should set out any limitations that apply – and the fact that they may be asked to attend meetings etc. in the office or at other locations. In addition, where appropriate, their contracts should set out any core hours where they are required to work and make it clear that they are responsible for making sure they take adequate rest breaks and work in an environment that is free from distractions etc. It is quite common to see provisions included where the employee agrees that they will not work from home if they are also responsible for looking after children or elderly relatives. You may also have to consider what expenses are payable, particularly if staff work from home. Will you pick up a proportion of the utility bills?
You should ask your staff to sign their new contracts (and diarise this to chase up those who don’t do so) and provide them with a copy for their records.
8. Confidentiality and compliance with data protection laws
If your staff are working remotely, either at home or elsewhere you need to put systems in place to make sure that the information they have access to (paper and electronic documents) are kept confidential. To some extent, the approach you take will depend upon where staff are working and whether they use their own or your systems and equipment. If you allow your staff to use their own laptops or phones, you will need to make sure that appropriate security and malware software is installed. You will also want to know whether other people (such as family members) will also be able to use these devices and put steps in place to make sure they can’t access your information and data.
In all cases, you will need to make sure that individuals adopt long passwords with multi-characters, two-step authentication processes, and unique passwords for different systems and logins.
Additional safeguards need to be imposed if the worker is likely to work in public spaces. Staff should be told not to use public computers or Wi-Fi for sensitive or business critical activities. In addition, you could provide laptop screens to minimise the risk that someone could grab a discreet photo of company sensitive information.
You will need to take appropriate technical and organisational measures against unauthorised or unlawful processing of data that identifies individuals. The General Data Protection Regulations come into force on 25 May and imposes stricter data processing rules which all organisations must follow. Non-compliance can lead to potential fines of up to €20 million or 4% of annual worldwide turnover, whichever is greater.
9. Health and safety risk assessments
Employers are also responsible for an employee's welfare, health and safety, "so far as is reasonably practicable". You must therefore carry out a suitable and sufficient risk assessment of all the work activities carried out by your staff, including homeworkers, those who hot desk or work from a variety of locations to identify hazards and assess the degree of risk they face in respect of their physical working environment, the equipment they use and mental risks. If you identify risks, you must take appropriate measures to minimise these.
Health and safety risk assessments also include assessing the risk of stress. Home workers may be particularly vulnerable to stress related illnesses because they may feel lonely and isolated or have difficulty in separating home and work life.
You must keep a record of your assessments.
10. Formal requests to work flexibly
Following changes to the law made in 2014, all employees have the right to make a formal request to work flexibly provided they have worked for their employer for at least 26 weeks. Employees do not have to demonstrate that they have parental or other caring responsibilities and can instead apply for any reason, even if it is linked to their personal preferences, such as to start work later in the morning because they find it difficult to get up!
The basic premise that the right is to request a different working pattern, not a right to obtain it, and you can reject an application on the eight grounds if granting the request will adversely affect your business.
The changes also introduced, for the first time, the concept of “reasonableness” into the process. This requirement is not the same as that required of you in the context of an unfair dismissal claim, although there are some similarities. You are required to follow a straightforward procedure and should only reject the application if you can establish one of the eight business grounds and the decision itself is not discriminatory.
Published: May 2018
Employment Law Update - May 2018
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