Rhona Darbyshire: Employers should review their remote working policies

The Department for Business, Energy and Industrial Strategy (BEIS) is planning to conduct a public consultation later this year on strengthening workers’ rights in relation to flexible and remote working, according to a recent report in The Times.

This news comes as the Work after lockdown research project, published by the University of Southampton in January 2021, found that 73% of employees would prefer “flexibility and control over their working pattern from which they have benefitted under lockdown”.

While there is little published on the consultation at present, we can draw inferences from a similar public consultation, Guidance on remote working, conducted in Ireland in July and August 2020.

It is hoped that the public consultation will allow the government to develop a national policy on flexible and remote working and update the law to reflect the recent changes to which we have had to adapt as a result of the pandemic.

The Work after lockdown project places an emphasis on the need for ‘”wellbeing interventions and practical adjustments to workloads…[to]…ease intensity and promote work-life balance”.

In addition, the findings of the Irish consultation suggest the following changes could be introduced: wellbeing training for management staff, template flexible working request forms, financial incentives to assist staff with broadband and telephone bills, and potentially the emergence of the ‘right to disconnect’ principle, as seen in France. The Working Time Regulations 1998 may also need to be reviewed and updated.

Before any of these rights can be enshrined the public consultation must be prepared, conducted, finalised, and the responses considered in detail. Public consultations should last 12 weeks, however, there may be the need for multiple consultations, according to the Government’s code of practice on consultation.

Following the closure of the Irish consultation, the responses have been used to inform a National Strategy on Remote Work to develop a longer-term plan. With this in mind and Boris Johnson’s optimism to see the cities “full of buzz again”, it may be some time before we see any significant changes in law.

For businesses, it is impossible to know exactly how to prepare at this stage when the outcome of the consultation is potentially so wide-ranging. Despite this lack of clarity, with lockdown now easing and many organisations targeting June 2021 as the date to start getting back to some sort of normality, it is expected that there will be a significant increase in flexible working requests from employees keen to retain at least some of this new-found flexibility.

Therefore regardless of the pending consultation, it would be prudent for organisations to review their flexible and remote working policies and to give some blue-sky thinking to how they want their workforce to function longer-term. Businesses should also consider how they would respond to the consultation if they were given the opportunity to be involved with that.

Rhona Darbyshire is partner and head of the employment team at law firm Cripps Pemberton Greenish