Over the last few months, employers and workers have had to get used to a new way of working. Many employees have been working from home. Others may have found themselves stranded overseas whilst air travel has either been impossible or undesirable.
Those who have started to return to their workplaces may be doing so on rotation or on staggered shifts, to comply with social distancing. As the consequences of the pandemic have forced companies to find solutions to complex logistical difficulties, home working and flexible working practices have come to the fore.
Although many uncertainties remain, one thing that does seem clear is that many employers and employees will be operating under the 'new normal' for some time to come. Though it has undoubtedly been a trying time, some employers as well as employees could have seen some benefits from an increasingly flexible approach to work. With these points in mind, employers may be considering that this is a good time to create or update flexible working policies.
There is no legal right in Bermuda to request flexible working, unlike in the UK, where employers are legally obliged to deal with flexible working requests reasonably and can only reject them on certain specific grounds. Nonetheless, having a policy in place will help companies to manage requests and set their employees' expectations.
If you are considering developing or refreshing a flexible working policy, here are some key issues you should consider:
- Stakeholder engagement – Any flexible working arrangements will need to suit the demands of the business, so managers should be involved in developing policies. You may also want to engage with staff, to gauge interest and seek feedback on their experience over the last few months.
- Procedure – Having in place a formal process setting out how requests will be handled and considered should help ensure consistency in decision-making. The policy could address matters such as how frequently an employee can make a request, in what form the request should be made, who should it be made to, who will be responsible for taking the decision, is there a right of appeal and even how long the process should take.
- Trial periods – As part of your procedure, you could consider providing for the possibility of a trial period to assess the feasibility of the employee's request.
- Competing demands – You should think about how you will manage multiple competing requests. Generally, it is best to consider each request on its own merits, taking into account the demands of the business, rather than making subjective value judgements about which applicants are more deserving. If you get competing requests, consider and discuss with the applicants whether they could reach a mutually-satisfactory compromise. Whilst adopting a 'first come, first served' approach is unlikely to be the best option, you could consider explaining in your policy that a 'tipping point' may be reached at which further requests are more difficult to grant.
- Discrimination – In other parts of the world, it is generally accepted that more women than men seek flexible working arrangements as they often bear disproportionate responsibility for childcare. However, this doesn't mean that you should take requests from men less seriously, as this could expose you to a discrimination claim under the Human Rights Act 1981 (1981 Act).
- Explain reasons – Whatever the outcome of a request, it is prudent to ensure that your reasons have been recorded and clearly communicated to the employee, as this could help avoid disputes.
- Document the outcome – Some forms of flexible working, such as changing the location or hours of work, will amount to a change to the employment contract. This is why it is important to ensure that the arrangements are clearly documented in a written agreement between the company and the employee, including specifying whether a trial period applies.
One aspect of working from home that sometimes gets overlooked is the potential health and safety implications. Employers have a general duty under the Occupational Safety and Health Act 1982 to ensure, so far as is reasonably practicable, the health, safety and welfare of their employees at work. Just because an employee is working from their home, this does not necessarily mean that their employer can ignore this duty. Employers may, for example, want to consider providing information on workstation self-assessments, so that employees can set up their home offices safely.
It also should not be forgotten that under the 1981 Act employers cannot refuse employment or continued employment because of an individual's disability where they are able to put in place measures to eliminate the effects of that disability without causing unreasonable hardship to the company. Notwithstanding the employer's internal policy, those measures could involve some form of flexible working.
For employers that are thinking about creating or updating a flexible working policy, or are dealing with requests from employees, the points discussed above should hopefully provide a helpful starting point.
First published in The Bermuda Chamber Of Commerce Newsletter (Chamber Insider), July 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.