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

Agile Working the future of work

Employment Law Webinar

Simon Bellm Partner, Employment

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• 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

What is agile working? Some definitions

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• 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

• ut a particular task

The Agile Organisation

What is agile working? Some definitions (2)

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• 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

What is agile working? Some definitions (3)

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• 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
• r even the park

IT Pro

What is agile working? Some definitions (4)

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• 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)

What does CIPD say?

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• 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’

What does CIPD say? (2)

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• 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

Don’t confuse agile working and flexible working

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

Poll

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• 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

Some recent experiences

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• Initial crisis management in March
• Health of staff
• Continuity of service
• Race to prepare to work from home

Covid-19 – lockdown

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• Assessment of resources required
• Furlough scheme to support traditional employment

relationships

Furlough schemes

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• Reduced travel
• Ease of homeworking – sometimes !!
• Acceptance of homeworking as legitimate
• Technology coping
• Acceptance of virtual meetings
• Reduced need for office space

Recognition of some of benefits

• f agile working

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• Does not work for everyone
• Isolation
• Mental health
• Workplace collaboration
• Workplace culture

Gradual understanding of some

• f the downsides

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• 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

The need for many employers to rethink how they operate

Stephen ten Hove Partner, Employment

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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

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• 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:

Agile working: contract law (2)

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• 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

Agile working: contract law (3)

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• 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

Flexible working: the extent of the statutory right

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• Request must
• Be dated, in writing, and state that it is made

under s.80F ERA

• Set out change requested and intended start

date

• Explain what effect, if any, it is perceived as

having on employer and how this might be addressed and

• Confirm whether a previous request has been

made and, if so, when

Handling a request

Reason for request? ACAS Code Discuss Deliberate over Deal (without) Delay

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• 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

Rejections and challenges

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• 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
• n 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?

Request for flexible working: the future?

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• My guess is it will be much more difficult
• Employees may also point to the contractual options presently available only at the employer’s
• ption 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

Requests for flexible working: the future? (2)

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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

Flexible working: things to keep in mind

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• Insurance: the employers and the employees
• Terms of employee’s mortgage
• Planning permission
• Relocation
• London Weighting

Requests for flexible working: Things to keep in mind (2)

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• 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

A client’s research

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

Poll

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• What are the implications of this?
• Three examples of permanent change from our own clients
• Sales company reducing its office space as its employees

now primarily work from home but team meetings in the

• ffice once a week
• A recruiter whose employees will be paid by performance
• nly and who can now take as many days holiday as they

like

Examples and your experience

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• A global company contracts with universities across the

world to provide language tutors

• Review the online work of students whose first language is

not English

• All work into a pool. Given a value and a fee
• Tutor (from anywhere in world) selects piece of work
• Limited time given
• Student feedback given
• Online chat room for tutors to support each other
• Recruitment via online test
• All induction/training online
• Not a word spoken between employer/worker or

worker/student

Examples and your experience (2)

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Simon Bellm

Speakers

Partner, Employment 01293 558511 Simon.Bellm@dmhstallard.com

Stephen ten Hove

Partner, Employment 0207 822 1518 Stephen.tenHove@dmhstallard.com