the future of work Simon Bellm Partner, Employment 3 What is - PowerPoint PPT Presentation

Employment Law Webinar Agile Working the future of work

Simon Bellm Partner, Employment

3 What is agile working? Some definitions  Agile working is a way of working in which an organisation empowers its people to work where, when and how they choose – with maximum flexibility and minimum constraints – to optimise their performance and to do their best work The British Computer Society

4 What is agile working? Some definitions (2)  Agile working is about bringing people, processes, connectivity and technology, time and place together to find the most appropriate and effective way of working to carry out a particular task The Agile Organisation

5 What is agile working? Some definitions (3)  Agile working is all about creating a flexible office and productive environment. By creating different working areas within the office you can ensure your staff have the complete freedom and flexibility to work where they want, when they want Office Principles

6 What is agile working? Some definitions (4)  Agile working is all about the business. An agile project is where research, planning, design, development and testing all happen in parallel. It allows for continuous improvements to be made throughout the process with the new system only going live when it has demonstrated the service works and meets the user's needs  An agile workforce can work from home, from coffee shops or even the park IT Pro

7 What does CIPD say?  Looking at workforce agility, the Agile Future Forum (2013) describes agile working as a set of practices that allow businesses to establish an optimal workforce and provide the benefits of a greater match between the resources and the demand for services, increased productivity, and improved talent attraction and retention. These practices span four dimensions  Time : when do people work? (for example, part-time, shifts, staged retirement)  Location : where do people work? (for example, homeworking, across multiple sites)  Role : what do people do? (for example, multi-skilling, secondments, job rotation)  Source : who is employed? (for example, permanent employees, crowdsourcing, outsourcing)

8 What does CIPD say? (2)  With regard to processes, structures and ways of working, CIPD Shaping the Future research defines agility as the ‘ability to stay open to new directions and be continually proactive, helping to assess the limits or indeed risks of existing approaches and ensuring that leaders and followers have an agile and change-ready mindset to enable them and ultimately the organisation to keep moving, changing, adapting’

9 Don’t confuse agile working and flexible working  Flexible working is a way of working that suits an employee’s needs, e.g. having flexible start and finish times, or working from home – a focus on “when” and “where” the individual works  Agile working may include an element of flexible working but will often involve a lot more  A discussion about empowerment, choice, optimisation of performance, processes, connectivity, and technology

Have you introduced new forms of agile working since March or think it likely that you will? Poll

11 Some recent experiences  What have we seen over the last few months?  A discussion about some of the changes in ways of working that we have seen over the last few months

12 Covid-19 – lockdown  Initial crisis management in March  Health of staff  Continuity of service  Race to prepare to work from home

13 Furlough schemes  Assessment of resources required  Furlough scheme to support traditional employment relationships

14 Recognition of some of benefits of agile working  Reduced travel  Ease of homeworking – sometimes !!  Acceptance of homeworking as legitimate  Technology coping  Acceptance of virtual meetings  Reduced need for office space

15 Gradual understanding of some of the downsides  Does not work for everyone  Isolation  Mental health  Workplace collaboration  Workplace culture

16 The need for many employers to rethink how they operate  A return to the workplace??????  Restructure/use of resources  Not just a question of reducing headcount. A question for many of reviewing how we operate as well  Discussion is within the context of an employment relationship, the environment we work in, government policy , the organisation’s needs

Stephen ten Hove Partner, Employment

18 Agile working: contract law  It is easy to forget that people can (largely) agree to any form of agile and/or flexible working  A contract of employment (or a variation to it) is simply a record of the agreement of the two parties  As a reminder, to be a contract, there must be  An intention to create legal relations  Offer and acceptance  Consideration between the parties  Certainty

19 Agile working: contract law (2)  If these things exist you have a legally enforceable agreement  There are a few constraints: for example  A Court will not usually order specific performance of a Contract of Employment  A repudiatory breach does not automatically terminate an Employment Contract  The law recognises that the parties to and employment contract do not have equal bargaining power as may dictate terms so the law sometimes intervenes – for example:

20 Agile working: contract law (3)  National minimum wage  Section 1 statement required  Working time (but you can opt out)  The law will not recognise excessive restrictive covenants  Employment Contracts cannot be assigned (Thus TUPE)  Employee obligations cannot be enforced by a third party

21 Flexible working: the extent of the statutory right  Employees now have the right to apply for flexible working  Eligible employees (service/status), have right to  Make a request for a change to their terms of employment governing how and when they work  Have that request dealt with in a “reasonable manner” and  Only have their request refused for a prescribed business reason (s. 80G(1)(b)) and on correct facts  Ineligible employees can make an informal request and note issue of discrimination

22 Handling a request  Request must  Be dated, in writing, and state that it is made under s.80F ERA Reason for request?  Set out change requested and intended start date ACAS Code Discuss  Explain what effect, if any, it is perceived as having on employer and how this might be Deliberate over addressed and Deal  Confirm whether a previous request has been (without) Delay made and, if so, when

23 Rejections and challenges  Rejection must be based on genuine belief that a valid ground for refusal applied  Fairness and reasonableness not relevant, but assessment of factual basis for belief is  The valid grounds are as follows  The burden of additional costs  Detrimental effect on the ability to meet customer demand  Inability to reorganise work among existing staff  Inability to recruit additional staff  Detrimental impact on quality  Detrimental impact on performance  Insufficiency of work during the period you propose to work  Client structural changes

24 Request for flexible working: the future?  But: in the last few months employers have been approaching employees with flexible working requests rather than the other way round  The furlough scheme itself operates as an agreed variation to an employee’s contract  Most employees have agreed no doubt due to a lack of viable alternative  But...  How difficult will it now be for employers to refuse for a prescribed business reason and on the correct facts based on a genuine belief of the employer that a valid ground for refusal applies and the employee request cannot be granted?

25 Requests for flexible working: the future? (2)  My guess is it will be much more difficult  Employees may also point to the contractual options presently available only at the employer’s option such as  Mobility clauses  Home working  Role flexibility  Flexibility on hours and shifts  And argue that they should apply equally to employees despite the strict contractual position that they do not

26 Flexible working: things to keep in mind Health & Safety  The risk assessment where you employ more than four people must be in writing  You must consult the workforce (especially those who are clinically vulnerable)  These obligations exist regardless of COVID-19 and apply to the diverse work spaces of a diverse workforce  Others points?  Supervision  Confidentiality  Restrictive covenants

27 Requests for flexible working: Things to keep in mind (2)  Insurance: the employers and the employees  Terms of employee’s mortgage  Planning permission  Relocation  London Weighting

28 A client’s research  Architectural practice specialising in designing office space recently carried out poll. Prior to Covid office space utilised at 75-80%. Was reduced to 25% during Lockdown. Their clients believe it will rise only to 50% post Covid

What do you think post Covid office occupancy will be? 20%, 50%, 75% or 100%. Poll