The Future of Work
The Coronavirus pandemic undoubtedly acted as a major catalyst for change to established workplace traditions, with many employers adopting widespread remote and flexible working arrangements for the first time or rapidly scaling up existing practices.
This said, the traditional workplace was already under threat, with technological advances challenging preconceptions around the when and where of the modern workplace.
The demand for flexibility is unlikely to slow post-pandemic, as employers apply lessons learned over the last two years and harness the benefits of technology driven remote-working.
In this article, the Tughans employment team consider three major areas of change.
Flexibility by default
All UK employees currently have a statutory right to request flexible working once they have accrued 26 weeks’ continuous service. Once this milestone is reached, an employee can submit a statutory flexible working request which must be considered by their employer under a compulsory framework and can only be refused on eight set business grounds.
The Good Work Plan began in GB in 2019 and has led to a series of proposals around supporting flexible and family-friendly working. Leading from this, has opened a consultation on “Making flexible working the default”.
Its proposals, published on 23 September 2021, include making the right to request flexible working a “day one” employment right, reviewing the grounds for refusal and requiring employers to suggest alternatives to their employees.
The first of these changes is perhaps the most telling, as it is intended to change the perception of flexible working from a “perk” gained through service, to a foundational employee option.
Employment law is devolved in Northern Ireland, meaning any equivalent changes would have to be made by the Assembly.
Right to disconnect
Flexible working, coupled with the increasingly common use of work smartphones, laptops, and remote access software, is eroding traditional boundaries around when and where work takes place.
While increased flexibility can be beneficial for both employer and employee, where an expectation of availability becomes unreasonable it can be detrimental to wellbeing. Employees are faced with new stressors – how often to check their emails? When is too late to answer calls? Should they bring their phone or laptop on holiday?
Many European countries are now attempting to address this issue. French employers have been legally required to negotiate the “right to disconnect” with trade unions since 2017, while Spain, Italy and Belgium have introduced their own legislative rules. In January 2021, the European Parliament has called for European legislation to provide the right to disconnect and protect employees from victimisation. Closer to home, the Republic of Ireland introduced a Code of Practice on the right to disconnect in April 2021.
There have been similar calls from trade unions and campaigners for the UK government to legislate for the right to disconnect in the forthcoming Employment Bill, expected in winter 2021. Again, this would not apply to Northern Ireland, and in September 2021 Economy Minister Gordon Lyons confirmed that there are “no plans at present” to introduce legislation in the Assembly. However, if legislated for in GB, there would be significant pressure for Northern Ireland to follow suit.
Even if the “right to disconnect” is not legislated for in 2021, it is perhaps inevitable, and change in the UK may be precipitated by a desire not to fall behind the EU, or individual European nations, on employment rights.
Professional employer organisations
The ability to offer roles on an entirely remote-working basis has huge potential for employers, allowing them to access diverse talent pools and business opportunities outside the UK. However, employing someone in another country can be intimidating from a legal perspective; some countries do not allow foreign companies to directly employ someone without setting up a local legal entity, many require employers to register and comply with corporate, tax and employment laws, and all have local differences in how the employment relationship is conducted.
Professional employer organisations (PEOs) or “employers of record” assume these responsibilities for their client. The PEO employs the individual and deals with local compliance with employment, immigration, and tax law. The employment contract, for example, will be between the PEO and the individual. The individual is essentially assigned to the client, who retains day-to-day management responsibilities.
The PEO model can allow companies to essentially offload legal responsibilities to a third party. However, it is not without its own compliance issues. For example, within the UK this model may engage with the established legal framework for agency workers and employment agencies, and there are equivalent regimes in many countries. Any contractual arrangement between a client and PEO should deal with a number of complex legal issues around compliance by the PEO with local law, protecting confidential information and IP, the individual’s employment status and indemnification for the client against employment-related claims.
Even with these challenges in mind, it is likely that recruitment across national boundaries will continue to grow, and employers will increasingly seek the services provided by PEOs, and similar global platforms for self-employed contractors, to access a wider talent pool and meet business needs.
While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.