Adapting to flexible and remote working

New flexible working models appear to be gaining momentum as businesses adapt to the changes brought on by the pandemic.

Hybrid working is becoming the norm for an increasing number of businesses, with employees engaged within remote or flexible working growing exponentially during the COVID crisis.

Studies indicate that in most European countries, between 70-80 per cent of employees are interested in pursuing some element of ‘agile’ working, post-COVID.

This seismic shift to working practices seems as though it will only be consolidated in future as the needs of businesses and employees change.

This has presented many challenges to conventional assumptions of work and business performance.

Evidence suggests that future work models will be based on a combination of work structures, which will require high-level organisational agility, flexibility, and adaptability skills.

In many cases, businesses are likely to adopt a combination of remote working and office-based roles, with flexibility at an individual level that allows employees to work efficiently.

This change is being driven as much by demand from employees as by benefits to the business.

However, it is important to recognise at the same time that not every business may be able or willing to adopt such a radical approach, and so we are likely to see a wide spectrum of change.

The movement to provide increased protection and rights to remote or flexible working employees is also now gathering pace in response to this new way of working. Chief among concerns for many legislators is the ‘right to disconnect’.

This topic has been in focus for some years, in line with the growth of digitalisation of work processes and communications.

The challenge for businesses is to reach the point where there is a balance between the needs and requirements of employees and their impact on business performance.

Difficult business decisions will need to be made and to be explained with clarity and compassion to staff.

Not all organisations will succeed in achieving their goals and business leaders will need to be ready to adapt their approach with the support of strong staff communications.

Businesses will also face the challenge of changing aspects of work culture and adapting to new legal and social norms.

This will require targeted business leader education and support. Changing behaviour can take time and requires role modelling by executive leadership.

As businesses transition out of the COVID bubble to the ‘new normal’, there will be pressure on cash flow, customer service, business marketing and sales, which will require employee groups to work in a specific manner.

If during this time, there is an overhaul of working practices, with large cohorts of employees transitioning to a new work model, the impact on efficiency and performance could be significant.

Best practice in this area is to commence engagement with employees as soon as possible and design the communications and interaction based on a partnership approach.

This will enable practical and tailored solutions that support the evolvement of organisational culture to incorporate new ways of working and new work design models.

However, this process should not be static. We remain in uncertain times and we are likely to see further changes to staff expectations and the needs of businesses in the months and years to come.

While some business leaders are on a journey of acceptance to flexible working, others may not have the resources or business models that allow remote working.

Alongside this, businesses must also consider how they implement technology alongside these changes to improve automation and monitor the work of remote employees.

Some businesses are exploring new ways of monitoring employees when they are out of the office by employing new technology to snoop on staff.

Even those returning to the office may find they are required to provide information that tracks and traces their place within the business to aid with dealing with COVID-19 outbreaks in the workplace and wider workflows within teams.

Staff monitoring can involve many different practices, including monitoring email content, checking on internet use, keystroke monitoring and location tracking.

In the UK there is no statutory right to privacy in the workplace under UK employment law, however, this doesn’t mean employers are free to monitor staff as they please.

The mutual duty of trust and confidence, which is implied in every employment contract, means that any non-compliant or inappropriate monitoring of staff could be considered a breach of this duty.

This could form the basis of a grievance against an employer or even grounds for constructive dismissal. There are also considerations under the Human Rights Act, including the right to privacy under Article 8.

Employers should also be careful not to conduct monitoring in a way that could be considered to be discriminatory, such as only monitoring a particular group of employees, such as younger workers or people with disabilities.

There are also important personal data rules that should be considered when monitoring staff members. The acquisition, storage and processing of personal data is covered by the General Data Protection Regulation 2016 (GDPR), which in the UK has been incorporated into the Data Protection Act 2018 (DPA 2018).

Workplace monitoring is also covered by the Computer Misuse Act 1990, the Investigatory Powers Act 2016 (IPA 2016) and the Investigatory Powers (Interception by Businesses etc. for Monitoring and Record-keeping Purposes) Regulations 2018 (IPR 2018), which impose criminal and civil sanctions for breaches of the rules.

Given the complexity and ever-changing nature of working practices, businesses must seek support from their trusted advisers so they understand the financial, legal and reputational implications of adopting certain working practices.

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