GTP21: How Flexible is YOUR workforce?

Thursfields Solicitors

This blog post has been produced for the Greater Birmingham Chambers of Commerce as part of the 2021 Growth Through People campaign.

Growth Through People is the Chamber’s annual campaign aiming to help local firms boost productivity and grow through improved leadership and people management skills. In 2021 this involves 8 free online workshops taking place throughout March, and a virtual Growth Through People conference on 30th March. In addition, throughout the campaign the Chambers will be publishing thought leadership podcasts, videos and blog content such as this.

Thanks to our Headline Sponsors – Aston University, BMet College and the University of Birmingham’s Work Inclusivity Research Centre - all workshops are free to attend. Interested readers can find out more and register to attend Growth Through People workshops here, and the Growth Through People conference here.

The last twelve months or so have been challenging for us all. The impact on our working lives has been significant and whilst some businesses have managed to adapt and survive (and even thrive) through lockdowns and restrictions, others have really struggled, with many closing altogether. One thing that has become very apparent is that flexibility is key to any successful working relationship, both on the part of employers and employees – and this is likely to be a continuing theme as we emerge from lockdown and into the brave new world that awaits us.

The government’s ground-breaking furlough scheme has enabled employers to ‘flex’ their workforce over recent months and this has inevitably saved at least some jobs that may otherwise have been lost  Clearly this is good for the employees themselves but it has also saved employer’s substantial redundancy costs and enabled them to retain key talent.  However, whilst lockdown feels never-ending, restrictions will eventually ease and the furlough scheme will come to an end. But businesses may continue to face fluctuating demand for quite some time as we face the long journey back to ‘normal’.  Having the ability to ‘flex’ its workforce will be a key part of helping to make a business future-proof. 

Once the furlough scheme closes, employers facing a temporary downturn in work will need to rely on the more traditional statutory lay-off and/or short time working provisions in order to flex their workforce. However, such arrangements cannot be unilaterally imposed without risk if the employer does not have the contractual right to implement such measures. It is therefore important to have the right to lay people off temporarily or reduce their hours in your contract of employment.   

Annualised hours are also worth considering if you anticipate fluctuations in workflow. Such an arrangement enables you to reduce hours of work when times are lean, but to require longer working hours when demand requires it (without having to pay overtime), ensuring that you can match staffing resource to available work more closely.  Building in the right to change working hour and shift patterns is also an option – although care must be taken when drafting such a right to ensure that it is both reasonable and enforceable.

Having a sabbatical policy is also a good idea as this allows individuals to opt to take time out of the business whilst remaining ‘on the books’. Asking employees to consider taking unpaid leave is one way to reduce the workforce temporarily – and having a clear policy setting out the sabbatical arrangements is helpful. Don’t assume that this is not something employees would consider – particularly when faced with potential redundancy. 

It goes without saying that consideration should also be given to part-time hours, job-sharing etc. when looking to reduce the workforce without making redundancies.  These arrangements cannot be imposed unilaterally without the risk of constructive dismissal claims, but as with sabbaticals, when faced with redundancy, reduced hours may be more acceptable than having no job at all.   

Zero hour contracts are used by businesses who want ultimate flexibility. These contracts can have a bad press and are frequently seen as one-sided in favour of the employer. That said, the freedom and flexibility that such working arrangements offer are increasingly favoured by students and younger people who find more traditional working arrangements restrictive. They certainly wouldn’t work in all businesses, but arguably there is a place for them in some sectors.   

It is important to remember that flexibility works both ways, and employees are more inclined to agree to be flexible about their working arrangements if the business shows similar flexibility. So it is sensible to have a well detailed flexible working policy which makes it clear that the business is open-minded about any flexible working request that an employee may wish to make. 

Flexibility is all about give and take, and a flexible employer is a resilient one.

Helena Morrissey
Director, Employment
Thursfields Solicitors