In depth

Creating a flexible workplace that is fit for the future

Gateley Legal

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It’s safe to say that the vast-majority of businesses in the UK and beyond did not see the unprecedented events of 2020 coming. Businesses and their workforces have been required to change and adapt with speed in ways that have not been seen since World War Two.

With winter approaching, the pandemic is still very much here and businesses are continuing to have to change and adapt to survive. It is worth taking time now to take stock and consider whether any changes you have necessarily already made are here to stay and also what else can be done to ensure your business is resilient to future business disruption.

Here we look at what your business disruption review should look at. 

Introducing new policies or amending existing policies

Some of the changes you may wish to implement may be achievable by way of the introduction of new policies or amendments to existing policies. This can be done fairly easily if your policies are non-contractual. Provided that you inform employees of the changes to policy and ensure that the policies are easily accessible, there is no particular formal process required before they can be rolled-out. They can be useful in ‘setting the tone’ for the way in which the business intends to deal with the remainder of the pandemic and re-emergence from it.

For example, you may wish to introduce a homeworking policy, setting out the rules and expectations around working from home. If you already have such a policy you may wish to review it to ensure that it is fit for purpose in a climate where the majority of your workforce may be temporarily homeworking at the same time. You may also wish to consider the introduction of other policies which could assist in reducing labour costs temporarily should similar circumstances arise in the future – for example, a positive focus on career break and sabbatical opportunities and policies.

If your workforce is not visible to you on a day-to-day basis owing to remote working you may wish to introduce new management tools and strategies to ensure that the conduct and performance of employees can be effectively monitored from a distance. Homeworking is, to an extent, a matter of trust and is certainly open to abuse. Those with employees still attending the workplace may also wish to review any employee health and safety policies to ensure that they accord with any COVID-secure risk assessments and instructions being communicated separately.  

Making amendments to employment contracts

You may want and need to go further and look at changing your employment contracts. When the country was placed into lockdown in March, businesses met with little resistance to the immediate changes required. However, these changes may have been agreed to be temporary only or enacted by informal consent. You may wish to future-proof your contracts to give you greater flexibility in anticipation of a repeat of this pandemic or something similar.

For example, consider the addition of lay-off and short-time working clauses into the employment contract so as to bring your business within the protection of the statutory regime governing lay-off and short-time which allows employers to cease or reduce the provision of work (and pay) for a period of time without such actions being a breach of contract. You may also want to consider, as part of the terms governing place of work, a right for the employer to require the employee to work from their home address. This would give you the flexibility to require this in the future without seeking consent in the moment with all the uncertainty that brings (provided that the right was exercised reasonably).

Changing contractual terms for existing employees requires agreement. Employees are unlikely to agree to changes which are to their detriment without some form of incentive for so doing. Businesses looking to roll-out new contractual terms in these areas should consider aligning the provision of new contracts with annual pay review, bonus payments or some other incentive such as an increase in holiday entitlement. If agreement is not reached, the business will need to consider the possibility of dismissal on the old terms and offering re-engagement on the new proposed terms. If 20 or more employees are potentially affected then collective consultation with representatives for 30 days (45 days if 100+ employees affected) may be necessary and the employer will need to present justifications as to why the changes are necessary. 

Innovation: flexing your human capital to survive in uncertainty

In certain sectors, the pandemic has required workforces to flex in ways never seen before. Some businesses were simply unable to operate in accordance with their original business model and needed to innovate to survive. This innovation incorporated human capital.

For example, supermarkets had an upsurge in requirements for delivery drivers, pickers and packers and on-line shopping administrators alongside a reduction in the requirement for in-house cashiers and restaurants had a reduction in requirement for front of house staff but an increase in administration and delivery personnel as they adapted to become take-aways. Some manufacturers started producing entirely new products (Mercedes stopped making engines and started making breathing-aids and a North-West distillery stopped distilling gin and began manufacturing hand sanitiser instead in response to demand).

Businesses should review their employment contracts as part of business continuity plans to ensure that they are able to use their workforce to innovate effectively in similar circumstances in the future. In particular, you may wish to look at flexible job descriptions and/or job titles which specifically allow for changes in job roles where necessary to sustain the business. The implementation of any changes would be subject to consent or potential dismissal/re-engagement as set out above and employers should act reasonably if ever relying upon any such clauses to change job roles in the future, sensitive to issues such as status. 

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