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HCR Law Events

15 October 2021

Is your business ready to be agile?

During the disruption of Covid-19 many employees have worked anywhere and everywhere, some juggling their working day with teaching long division and phonics. Now that the initial crisis has passed, employers are thinking about how to take the benefits of these ways of working into the long term. But in the brave new world of flexibility, employers should take care they don’t sleepwalk into a future tribunal.

In early lockdown, the newspapers were full of stories of employees who had taken a London salary, sold a shoebox in Clapham and bought a five-bed mansion by the seaside. The boom in dog ownership was well documented, with one estimate being that 3.2m households bought a new pet since March 2020.

How are these changes compatible with employers wanting now to review long term working arrangements, including at least some office attendance? We recommend that employers looking to implement ongoing flexibility should create two very separate processes for consideration and approval.

Agile working is day-to-day flexibility without the expectation it can be guaranteed. You may not go into the office for a month, but you are still expected to be available to do so. You may generally do the school run most days, but if a client needs an urgent meeting at 3pm tomorrow, you are expected to have a back-up plan. While you may work convenient hours currently, if a team project means you need to work the same hours as other people for six months, you do so.

Flexible working is more concrete – it is a contractual guarantee of a change in terms and conditions. That is the type of commitment an employee needs if they are going to move to Cornwall, buy a puppy, or decide on a nursery place.

We expect that the difference between the two will cause difficulties for employers and employees as working patterns change – if employees think they have a flexible working agreement and their employer believes they have an agile working agreement, grievances and eventually tribunal claims could follow when the employer wants to make changes.

So, what can employers do prevent such problems?

  • Create defined language that separates the two processes. Calling both types of working ‘flexible’ is bound to lead to confusion.
  • Create clear policies and boundaries. Make it clear that agile working is about flexibility for the wellbeing of employees and the benefit of the employer, but it is not the basis for making life changing decisions that could not accommodate a return to a more traditional pattern. Signpost the flexible working policy for those circumstances (and consider any such requests appropriately, with an open mind, documented reasons, and careful consideration of counter-offers if the request cannot be agreed).
  • Encourage employees to understand that agile working allows employers to be more accommodating. An employer may be able to agree a pattern for a three-month project that they could not commit to permanently. Regular reviews of working patterns within teams can help to foster a culture of adaptability by both parties.
  • Encourage teams to work collaboratively to formulate proposals for working patterns. The classic example is that some people are larks and some are owls. Allowing them to work together to create a working pattern can often avoid having to assign people to working patterns which they dislike.
  • Don’t forget the juniors. As a middle aged, established professional with a nice desk and a garden, home working can be pretty great. If you’re stuck in a flatshare, working on your bed and without any professional role models around you, it can be pretty suffocating. It has been noted that trainees and juniors who have spent much of their career so far online are less confident with direct communication with clients and customers, having had so much less opportunity to observe and learn.
    Agile working is about working for everyone, which means not being driven solely by the lifestyle preferences of the most senior. This type of team awareness helps futureproof your agile working by building in understanding from the start that it is about give and take.
  • Embrace change. Covid has given many companies a chance to really reset employee relations and think ‘what if’. Agile working can give employers the confidence to try out bold experiments with staff, on the understanding that they are just that – experiments. If they do not work, then things change again.

The Covid pandemic forced our ways of working to change almost overnight. With careful planning and communication, the benefits of those changes can improve life for employers and employees for the long term.

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About the Author
Rowena Kay, Senior Associate

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Rowena Kay is a Cheltenham solicitor, specialising in Employment and Immigration

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