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Stronger flexible working rights demanded as employers warned of indirect discrimination risk
14/05/2021
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Coronavirus 'Stay home, Coronavirus Tier 4 ' sign on the street of London

The UK government should strengthen all workers’ rights to flexible working, unions argue today, the 16th annual Work from Home Day, as part of Work Wise Week – a week of activity to promote employment practices that improve work-life balance.

An expansion of flexible working patterns must include all workers, said the Trades Union Congress (TUC), regardless of whether the workers can do their jobs from home. The union body also argues that home working must not be forced onto workers in ways that only benefit employers – such as to cut office costs without consideration of staff needs.

The call comes after Prime Minister Boris Johnson announced that work-from-home guidance would be lifted on 21 June. The TUC said it was concerned that this week’s Queen’s Speech did not include legislation on employment rights and flexible working, despite prior commitments to making such work the default in all workplaces.

On the need for safe returns to work when current home working guidance ends, the TUC urged the government to step up health and safety enforcement to ensure all workplaces are covid-secure and called on employers to properly consult with their workers over return to work arrangements.

The union body highlighted that many workers who had previously been unable to work from home may seek to continue doing so, either for all or some of their hours. However, it also warned of “a new class divide” between those who may find it easier to achieve more flexible working patterns in the future, and those who cannot.

The TUC said that in the post-covid-era, employers should consider the flexible working needs of their workers; not just working from home, but also other non-traditional working patterns, such as predictable or fixed hours, job-share, or flexitime, term-time only, annualised, or compressed hours.

In particular, the TUC argue that more workers should have the right to set hours to manage their working life and other commitments, such as childcare, rather than having to make new arrangements every week when shifts are announced.

“It’s likely that many workers will want to spend more time working from home. And it's vital that employers have positive and constructive discussions with staff and unions about how to make this work,” TUC General Secretary Frances O'Grady said. “But a sole focus on home working rights would create new inequalities for those who cannot easily work from home.

“The prime minister’s failure to include an employment bill in his legislative programme is a colossal failure to address the needs of working people. He must bring forward new rights to flexible working without delay. And he must urge employers to think through how they can offer a range of flexible working patterns to all their workers, whether based in a workplace or not.”

Businesses need to ensure employees are assessed according to the quality of their work, and not where that work is done. ‘Out of sight’ should not mean ‘out of mind’

Employers have also been warned not to discriminate against home workers. The Office for National Statistics data from 2011 to 2020 showed how home working can negatively impact on an employee’s earning potential, their chances of promotion, and their likelihood of receiving a bonus. 

The pre-pandemic research found home workers, on average, worked more unpaid hours than their office counterparts, but were less than half as likely to be promoted and around 38% less likely to receive a bonus compared with those who never worked from home.

Home workers being less likely to be promoted could lead to a lack of diversity at leadership level and also to claims of indirect discrimination, lawyers have warned.

“Businesses need to ensure employees are assessed according to the quality of their work, and not where that work is done. ‘Out of sight’ should not mean ‘out of mind’,” said Alana Penkethman, a chartered legal executive at Parker Bullen.

Employers were warned that inequalities between office and home workers could start to show over the next six months, especially as people with disabilities and parents with young children are more likely to choose home working.

Penkethman advised companies to update their HR policies to ensure home working does not create any unfair disadvantages and closely monitor earnings, bonuses, promotions, and training opportunities to ensure equal treatment of all staff.   

“As the UK emerges from lockdown the way we work may change. Will we end presenteeism, reduce commuting, use designated workspaces in homes, or make hybrid working across workplaces and homes the norm?” remarked Phil Flaxton, chief executive of Work Wise UK.

“National Work from Home Day provides an opportunity for employers to start conversations with their staff on future ways of working. Working people need a say on what works for them – and what doesn’t. If their needs are respected, it could really help healthy changes that benefit the whole working population.”

Flaxton added that one-size-fits-all approaches to the future of work were unlikely to succeed so employers, trade unions, and the government should work together to ensure that those who cannot work remotely are not excluded from modern flexible working.

“The pandemic has reminded us all how fragile we are, along with our everyday activity like working structures, too,” he said. “Change can happen fast and from surprising directions. This should be a period of reflection for us all, while we still have time to plan a better world of work after the pandemic.”