Agile Working Recruitment Freezes Pay Restraint Outsourcing Cutting agency/ contract Staff Generating Efficiencies: Maintaining Effectiveness Restructuring & Redundancy Cessation/reduction of services Relocation of Staff Shared Services
Flexible/Agile Working • Top of the agenda • Government Consultation on Modern Workplaces • Olympics • CIPD Report May 2012– 96% of employers offer flexible working (most commonly part-time and home working)
Working Beyond Walls (Flexible Working In Government) Report • Work is “something we do not somewhere we go” (Sir Gus O’Donnell) • CAVE - Computer Animated Virtual Environment • Sound like the Jetsons at work!? • Sound expensive!? • But by 2020 home working will be a natural way of working for most people.
The “Conventional” Approach • Overly burdensome/a necessary evil • Legalese-implications of refusing flexible working requests • Direct/indirect sex discrimination complaints • Breach of Flexible Working Regulations • Constructive dismissal complaints
Public Sector – Additional Considerations • Necessity is the mother of invention • Flexible working is being embraced by the public sector as a potential driver of efficiency rather than a blocker.
Types of flexible working • Part-time working • Compressed hours • Annualised hours • Job share • Term time working • Home working
Benefits of flexible working • Reduced overhead costs • Increased productivity • Reduced absence • Wider skill pool/retention • Reduced impact of external interruptions
Drawbacks • Reduced control/visibility • Support/mentoring difficulties • Over reliance on technology – business risk? • Over-blurring of the lines between home and work – increased stress? • Disconnection/socialisation
Making the arrangements work effectively – the tricky bit! • Contractual considerations • Data protection/information security • Arrangements on termination • Health and safety • BYOD – not to be confused with BYOB… • Avoiding discrimination/less favourable treatment allegations
Contractual considerations • Hours of work - establish the boundaries • Absence - holidays and illness reporting • Place of work - flexibility works both ways • Salary and benefits - avoid less favourable treatment • Expenses - specify who is responsible for what • Right to enter - employer may need access • Discipline and grievance
Data Protection & Information Security • Requirement to take appropriate technical and organisational measures against unauthorised processing, accidental loss or damage to personal data. • Processing includes obtaining, recording, or holding information or carrying out any set of instructions on it – very wide. • Definition of personal data also wide. • ICO has the power to impose fines of up to £500,000 per incident.
Some cautionary tales • Unencrypted laptops • Hounslow Council – fined £70,000 • Ealing Council – fined £80,000 • Inadequate IT security on website • Andrew Crossley/ACS Law – fined £1,000 • Theft of sensitive papers in a pub • Croydon Council – fined £100,000 • Sensitive papers dropped in the street • Lancashire Constabulary – fined £70,000 • Theft of memory stick from employee’s home • Greater Manchester Police – fined £150,000
Effective Data Protection Measures • Specific training • Conduct risk assessment in line with ICO’s Statutory Guidance • Specify who accesses computer and personal data stored on it • Home Security – is employee’s home left unattended for regular periods? • Use of passwords and encryption – sharing forbidden/instructed to change regularly? • Storage and security of paper files • Transporting information between home and office • Rules on retention and disposal of information
Obligations on termination/confidentiality • The implied duty is more difficult to police where employees work from home. • Insert a specific confidentiality clause in a home worker’s contract • clearly set out what information is confidential and how it requires to be secured. • importance of the right to enter and obligation to return information on termination of employment.
Health & Safety considerations • Employer’s basic obligation – take care of employees’ welfare and health and safety “so far as is reasonably practicable” • In the context of home working consider – • Stress – work/life boundary and isolation/socialisation issues. • Equipment – suitable, maintained and inspected regularly • Electricity at work – Electricity at Work Regulations 1989 – who knew? • First Aid – responsibility to supply appropriate provisions • Accidents – establish proper procedure for reporting of accidents
Use of equipment • Home workers and peripatetic workers increasingly allowed to use own equipment • It even has its own term (BYOD) and its own ACAS Code of Practice • Making BYOD work effectively- • Security • Ensure right of access either physically or remotely to wipe data (restrict liability for loss of personal information). • If contributing to cost, require repayment if employee leaves • Clear misuse policies and instructions all the more important
Flexible working will not be effective if it leads to discrimination/ less favourable treatment allegations • Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 • Unlawful to treat part-timers less favourably unless this can be objectively justified • Pro-rata principle will generally be applied unless this can be shown to be inappropriate • Sex discrimination - less favourable treatment of flexible workers will often amount to indirect sex discrimination • Audit levels of pay and benefits, access to training and promotion and employment opportunities for flexible workers as compared to office based workers
What’s in a name? • Unilever – “agile working” • Siemens – “location independents” • Plantronics – “smarter working” • O2 – “desk huggers” or “desk hoppers” • Competition time…..
Redundancy • Redundancies still on the agenda for 2012/2013 • Public sector tradition of VS and VER • Increase in compulsory redundancy in public sector • VS schemes have not achieved required efficiencies • Those prepared to leave on VS have already left • Labour market tight – reluctance to volunteer • Public sector line managers less equipped to address “survivor syndrome”? • Levels of morale low due to relentless cuts.
Generating Efficiency: Sustaining Effectiveness • 2 key issues • (1) Legal process • Identifying redundancy situation • Selection criteria; identifying appropriate pools • Alternative employment/trial periods • Consultation • Importance of getting it right – financial and reputational risk • (2) Employee engagement challenge
Legal Process – Some Hot Spot Issues • Employees on maternity leave • Consultation • Special protection • Sickness absence/disability • Volunteers • Discrimination and grievances • Fixed term contracts • Secondees
Maternity leave - consultation • Basic rule - don’t forget about employees on maternity leave! • Communicate with employees on maternity leave and consult if possible • Let them know about suitable alternative vacancies • Pregnant employees (not on maternity leave at the time when the redundancy dismissal takes effect) should be treated the same as any other employee
Maternity Leave – Special Protection • Regulation 10 MPL Regs. – right to be offered suitable alternative. Controversial – appears to create preferential right for those on maternity leave • Applies to those on leave at the time of redundancy • Two scenarios: • diminished headcount – maternity leaver is not ‘protected’ in selection • role re-design – maternity leaver has preferential right to alternatives that are created in the new structure.
Sickness Absence/Disability • Basic rule - don’t forget about those who are absent for medical reasons • Disabled employees – no right to a vacancy but reasonable adjustments must be considered to ensure that competition for vacancies is on a level playing field. • additional designated support • adjustment of the selection process required? • Employee absent during process due to ill health – obtain medical input
Discrimination and Grievances • Outstanding unconnected grievance • Grievance can be dealt with or parked until after the redundancy process has concluded - weigh the risk • New complaint not connected to the process • Complaints about historic bullying etc. by people not involved in the process can be dealt with separately or parked until the process has completed - acknowledge complaint and communicate proposals to deal with it • Complaint about the process/scoring • Complaints about the process itself need careful handling and may have to be connected to the consultation/appeal process
Fixed Term Contracts • Termination of fixed term contracts and collective consultation • Is termination due to redundancy or for a reason relating to the individual employee? • Non-renewal of fixed term contract is a dismissal • Do fixed term employees need to be included in the selection pool? • If the job was going to finish anyway, regardless of wider job reductions, fixed term employees need not be included in the pool • If the contract is not being renewed because of a wider job reduction programme, they should be included in the pool
Secondees • Consider at outset what the ‘status’ of the seconded role is:- • are they now more or less permanent? • is it clear that they will be returning to their original base? • If they are more or less permanent in their seconded role, they may be able to be considered within the seconded area • If original role still exists, is this alternative employment?
Addressing Morale/Survivor Syndrome • Effective management of redundancy more than a legal issue • Redundancy = change = emotional response • Tools to address the emotional response • Communication • Empowerment • Management influence • Tools can be used in legal consultation to improve morale throughout the process and beyond
Consultation • Remember legal obligations • Collective - currently • 20 – 99 in a 90 day period = 30 day consultation period • Greater than 100 = 90 day consultation period • Individual • Consult on • Reasons for proposal; timescales, pools, selection criteria, basis for selection, redundancy package, alternative roles, support available… • How do you make it “fair”? • Formative stage • Adequate info: adequate time • Conscientious consideration of employee’s/reps’ response
Personal Reaction to Change/Trauma • ACCEPTANCE • SHOCK • DENIAL • FEAR • ANGER • TESTING • BARGAINING • DEPRESSION