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    The Future for Flexible Working in the UK

    Locke Lord Publications

    In the UK, many office-based workers have found that they are able to work full-time from home during the coronavirus lockdown without too many complications. Enhancements to remote access IT systems and inventive solutions to practical problems have meant that many UK desk-based businesses have remained fully operational. Offices remain largely empty and are likely to remain so for some time while current UK government advice persists. But will this pandemic end the traditional office structure as we know it once the current crisis passes?

    There will clearly be a significant decision point for companies on this issue. But in the UK this decision may be left partially in the hands of employees as a result of UK flexible working legislation.

    Currently, there is no absolute right in the UK to work flexibly, only a right to request flexible working (which can involve part-time working as well as home working) and have that request considered through a formal process. However, over the past decade and a half, UK governments of all persuasions have enhanced the rights of employees to request flexible working. Initially, in 2003, the right was introduced to request flexible working programmes in order to care for children under six or disabled children under 18. This right was more recently extended to all employees, irrespective of the reason they wanted to work flexibly. Even before the pandemic, in its 2019 Manifesto, Boris Johnson‘s government said that it wanted to make acceptance by the employer the default response to a request to work flexibly, with the company needing to provide “good reason” for any refusal. The chances of this legislation being passed have likely been enhanced by the experience of lockdown.

    In the past, employers may have resisted requests to work from home on the basis that it was not practicable. With resistance on this basis potentially becoming more difficult to justify, how can employers say no, and conceptually, should they?

    Building and lease expenses are often a substantial portion of overhead for employers and thus are an opportunity for significant cost savings. If employers want to continue with a fully office-based model in a world in which the UK government at least is advocating for a paradigm shift by reversing the burden of proof for employee flexible working requests, employers will need to convince not just reluctant employees, but also their finance director, that there are sufficiently tangible benefits to make the financial outlay worthwhile.

    On the other hand, there are significant business benefits to be gained from employees seeing each other on a regular basis, but an instinctive belief in the office environment may no longer be sufficient justification for the continued expense. The business benefits, which tend to apply differentially to different generations of employee, given the variances in home lives and skills development needs, will have to be articulated and quantified: team spirit, on-the-job training of junior staff, the cohort spirit engendered in a large group of graduate starters who grow up in the organisation together, the cross-selling and idea fertilisation that come from chance meetings in the corridor and quick lunches and coffees with colleagues in a way that is unlikely to be replicated on Zoom, and the logistical simplicity of being right next to administrative support colleagues – it is worth considering what activities have been possible, but more complicated or inefficient during lockdown. While it may be easier to manage and support underperforming employees to improve if everyone is in the office together, this may also put an onus on managers in the future to provide high-quality mentoring and supervision.

    Many office-based businesses may not return fully to the status quo but shift to a modified form of it. For such companies, partial homeworking will likely be allowed in response to combined employee and finance director demand and—now that many employees have acquired a taste for homeworking—as a retention tool. Whatever their viewpoint, employers may be best served to come out proactively with a new policy on homeworking which is both well-articulated and convincing, taking some of the business benefits of both office-based working and homeworking, and potentially introducing hot-desking and saving premises costs in the medium term, rather than waiting for the raft of flexible working applications requesting 100% home working, which employers will then be on the back foot resisting. The working environment which employers create for their employees is not only a legal and financial issue. It is also about setting the right culture for the organisation, and now is an important time to set the right tone.

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