11 October 2012
Employment Solicitor Antonio Michaelides on Flexible Working
Quieter morning and evening commutes, less hustle and bustle at tube stations during rush hour and generally a more stress-free start and end to the working day are some of the arguments that have been put forward following the Olympics in favour of working from home. The Department for Business, Innovation and Skills (BIS) is proposing to extend the right to request Flexible Working Arrangements to all employees and appears to have cross party support, with both the Coalition and Labour expressing support for the idea.
The potential benefits to employers and employees (and, consequently, to the macro economy) are far-reaching. Studies appear to suggest that those who work from home are not only more productive but actually “put more hours in”. They are also less likely to have long periods of absence from the workplace and are generally much less likely to leave as they are happier in their jobs. On the flip-side, the risks are those that companies of all sizes have voiced; these include things such as workforces becoming fragmented because the employees are based in different locations, concerns over data protection and, in heavily regulated sectors, the efficacy of insurance policies where the workforce is not based on-site.
It is this last point that, in my view, actually forms part of a much bigger concern that employers have with employees working from home and something that needs to be tackled if employees are ever going to be able to request Flexible Working Arrangements without fear of being treated adversely for doing so. Whilst Employment Law today threatens to drown us all in a sea of case law and regulation, it was, once upon a time, all contained in the “The Law of Master and Servant” and certain legal principles are still modelled on this archaic relationship. From the employer’s perspective, not having the workforce in one place and under the observation of their seniors where their performance, time-keeping and general behaviour can be monitored can seem an unattractive prospect.
Larger organisations should be more open to Flexible Working Arrangements given that, in terms of set-up, they are better placed to promote and foster remote/home working (for example, due to more sophisticated IT/phone systems and employees therefore being contactable at all times). But, in practice, many actually remain sceptical of Flexi Working Patterns and, according to studies based on questions actually put to employees in larger organisations, the main reason for this is thought to be linked to a (perceived) relinquishing of control over the employee. Surely, in light of the potential benefits and advances in technology, such a concern belongs in another era? Technology has actually enabled employers to keep a closer eye on the activity of employees (regardless of where they are based) so what we are in fact dealing with is something akin to physical control/supervision – once the cornerstone of the employment relationship.
Today, the notion of “control” is only part of what is, amongst employment practitioners, known as the “multiple test” that is applied by the courts to determine the employment status of an individual where this is in dispute. Some would suggest that the courts do not place as much emphasis on “control” as they used to but this is by no means the view of the majority. If Flexible Working arrangements were to be promoted and rolled out on a more permanent basis and not just so that London could cope with the influx of approximately half a million spectators over a few months, would the courts be ready to apply the test in light of such changes (or, for want of a better word, developments) to working patterns or would we face yet another period of legal uncertainty concerning employment status whilst the judiciary grapple with a new way of employers organising their workforce?
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