JD Supra: The new normal for workplaces

There is talk of a flexible working revolution in the post-COVID-19 world, but will the workplace really change that dramatically and, if so, what will that mean for employers and employees alike and what are the pros and cons of a remote workforce?

Tech/social media appears to be leading the way. Mark Zuckerberg announced to his workforce last month that going forward Facebook would be making the most of its open roles in the US available for remote recruiting and hiring. Later this year, many of its current employees will also be able to apply to change to remote working. Mr Zuckerberg predicts that half of its c.45,000 employees will work from home within a decade and this move will lead to people leaving the traditional tech hubs of London and Silicon Valley and heading out of town. Interestingly, he has indicated that salaries will be adjusted to reflect the employee’s new locale and there is, of course, no detail as to how this would be calculated or policed, other than the promise of “severe ramifications” for those who lie about where they are living.

This is all part of Facebook’s MO of leading the charge of modern working. However, is this a move for the better? Mr Zuckerberg’s opinion is that remote working policies would spread economic opportunities, improve diversity and be better for the environment. There are already reports that almost half of workers want to continue with flexible working even after COVID-19 restrictions are lifted.

Anyone who has been working at home for the last two to three months has enjoyed the benefits: more sleep, more exercise, more time with the kids (arguably way too much…) and more time with the dog (at least they do not need to be home schooled!). However, what about the downsides? A permanent remote working model poses many practical, logistical and legal questions:

• Can you effectively manage employees remotely? Managers will need to adapt and make sure that they schedule and keep regular phone and Zoom catch-ups with their direct reports. Remote working undoubtedly reduces the amount of one-on-one contact and employees will need regular touch points to know that they are on track.
• How do you monitor productivity? Arguably, output should not be any harder to measure. We know that physical presence does not necessarily equate to productive work.
• How do you ensure employees are taking adequate breaks and you, as an employer, are complying with Working Time legislation? This is more difficult to police with a remote workforce. You will need to make sure that contracts and policies are up to date and employees are informed about what you expect. Managers will need to question employees about their remote working habits and be alive to warning signs from those who are working excessive hours to guard against burn-out.
• How do you ensure the health and safety of your remote workforce in their home environment? A survey by the UK’s Institute for Employment Studies of more than 700 employees since the start of the lockdown found that more than a third reported extra aches, pains or discomfort in their neck or back than usual. Laptops are not designed to be worked on all day, every day. If employers are proposing to move to a remote working model, they will need to equip employees adequately. This will clearly have a cost implication, but the cost of equipping remote employees and assessing work stations must be balanced against the ever-increasing cost of office space. Remote working is still likely to be a no-brainer when compared with the cost of prime city office space.
• Is there an impact on mental health and, if so, how do you minimise that risk and manage it? Octavius Black, Chief Executive of the Mind Gym, says: “There is a risk of productivity collapse as people burn out, can’t cope, feel exhausted, and opt out. Companies won’t notice until quite far down the road, and will find it hard to recover.” (Financial Times, 21 May). Managers and HR need to be alive to the warning signs of burn-out and mental health problems. This should form part of their risk assessment. Support needs to be accessible, such as employee assistance programmes, internal and external coaching, and access to private medical services. Employers need to encourage open discussion about the importance of mental wellbeing. If employees feel comfortable about raising these issues, it is to be hoped that warning signs will not be missed and productivity will not suffer.
• How do you ensure your remote workforce is bonded and motivated? During the lockdown, we have all found increasingly more creative ways to engage with our colleagues, friends and family remotely. Thanks to the resurgence of the traditional quiz, we all now know random facts such as the name for a group of hedgehogs (a prickle for anyone who has not completed it!). Both adults and children alike have been racing round their homes on scavenger hunts with colleagues and classmates. However, sometimes those remote drinks on a Friday can be rather awkward and face-to-face team meetings at varying locations will become important to maintain that sense of team spirit that is essential to productivity.

Employment lawyers have been advising employers for years on the ease with which they can refuse flexible working applications. However, post COVID-19 that is likely to be more difficult – if it was doable and acceptable during lockdown, why is it not okay after the restrictions have been lifted? Clearly, these have been extreme circumstances. Employers had barely any warning of lockdown or time to prepare and there has been some “making do” – some work has to be better than none. Employers are advised to keep some form or record of any issues they have experienced owing to remote working and to keep their options open.

How close are we to having a right to work from home enshrined in our legislation? The suggestion of more protections to work from home and the benefits of remote working were detailed in the Taylor Report published in 2017. The government’s response in 2018 said “as part of the statutory evaluation of the Right to Request Flexible Working in 2019, the government should consider how further to promote genuine flexibility in the workplace”. Boris Johnson committed his government to making flexible working a default right for workers in the party’s 2019 manifesto: “We will encourage flexible working and consult on making it the default unless employers have good reasons not to”, but how often do manifestos actually come to life? However, we are living in unprecedented times and this movement has undoubtedly been accelerated and propelled into the national debate by COVID-19.