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The phrase ‘levelling up’ is derived from the game of Dungeons and Dragons, in which players gain experience points and ‘level up’ their characters by gaining new skills and abilities. The term has been repurposed in the UK to refer to the government’s stated goal of improving economic conditions in disadvantaged regions (in particular, post-industrial areas of the North of England), through investment in infrastructure and services. There are, of course, many who doubt the sincerity of this stated aim.
Flexible working practices, and in particular working from home, are seen as an important part of achieving levelling-up. The thinking is that if people are able to work from home, they will be more likely to move to areas with better job prospects and/or lower living costs, and that this will help to boost the economy in those areas. There is some evidence to support this view. Research by the think tank Centre for Cities found that cities with higher rates of homeworking (defined as people working from home for at least part of the week) tended to have higher employment rates and wages, and lower levels of economic inequality. However, it is worth noting that the study also found that the benefits of homeworking were not evenly distributed across cities – in some cases, it actually made inequality worse. The study found that, perhaps counterintuitively, homeworking was more common in cities with better transport links, suggesting that it is the flexibility rather than the homeworking per se that is in issue here. Moreover, it is of course worth noting that the study only looked at correlations, and cannot prove that homeworking causes levelling up. There may be other factors that are important for levelling up, such as investment in education and skills.
The ILO has produced a report on working from home, From invisibility to decent work. It looks at the evidence for the impact of working from home on productivity, work-life balance, employee engagement and inclusion, and employers’ costs. It also looks at the evidence for the impact of working from home on different types of workers, including women, young people, older people, people with caring responsibilities and people with disabilities. The report finds that working from home can have a positive impact on productivity, work-life balance, employee engagement and inclusion, and employers’ costs.
However, the report also finds that there is a lack of evidence for the impact of working from home on different types of workers, including women, young people, older people, people with caring responsibilities and people with disabilities. The report concludes that more research is needed on the impact of working from home on different types of workers.
Not waiting for the research or the legislature, a number of firms are now reported to be experimenting with how to offer flexible working as standard. Stephenson Harwood made headlines recently for offering a permanent work-from-home option to its lawyers. Those who choose to be based from home will receive a pay cut to reflect the reduced commute time and the flexibility afforded them around where they live. They will only be expected to attend the office one day in a month for which expenses will be available. For those not wanting such a shift the firm will require 60% attendance in the office, itself a significant move away from the pre-pandemic default for most city firms of full-time office-based work.
A survey from the Chartered Institute of Management found that 80% of firms have now adopted hybrid-working with those institutions who push for a full-time return to the office often facing a backlash as Jacob Rees-Mogg has discovered when he sought to draw civil servants back to their desks.
You might be wondering what all of this means for employment lawyers. Here are a few topics where employers are going to need advice because of these sorts of changes. The list is, in fact, endless but here is a ‘top 10’:
1. Managing performance in a remote workforce: where technology is used to manage productivity there are issues of privacy and consent; where technology is not used, practical issues around evidencing performance concerns can arise. A workplace is not a happy one in which employees feel they are not trusted and are being spied on; on the other hand, a workplace is not a happy one in which people feel that their colleagues are not pulling their weight. Employers will need to set clear expectations and set out a clear framework for how they are going to monitor those expectations.
2. Potential direct or indirect sex discrimination: there is a risk of complaints if it emerges that the majority of remote or largely remote workers are parents with childcare responsibilities (read: women) and differences in treatment emerge between the in-office and at home cohorts. This is a complex issue; as the country came out of the pandemic there were a number of tribunal cases coming on for hearing where parents were struggling with the idea of having to return to office work having been able, in effect, to work from home but without arranging alternative childcare. That is a situation many will have got used to.
3. Potential direct or indirect age discrimination: there may well be a potential for complaints where restrictions are applied, for example, to prevent junior workers from working from home or where a minimum length of service is required before flexible working is available.
4. Health and safety: it can be challenging for employers in assessing remote workplaces particularly where employees elect to work in a number of locations at will. How far will the employer’s obligations be taken? Will employers start setting guidelines or even rules for where work can be performed?
5. Jurisdictional issues and tax issues: questions may well arise where employees work internationally (permanently or at will) but are employed by a UK employer. Even pre-pandemic, there was a line of case law on the extent to which UK employment protections applied to workers with minimal ‘physical’ contact with the country.
6. Challenges in managing a workplace culture: with a dispersed workplace, avoiding a ‘them and us’ culture and effectively tackling inappropriate workplace conduct become more complex issues; an issue for junior employees starting out in new workplaces is that they felt they did not know their colleagues well and were less able to pick up on the soft skills that come with working in an office environment.
7. Data protection: this is a significant topic with employees working remotely about which much has been written. Employers will have to give serious thought to where data is stored and the steps their employees are taking – at home or indeed elsewhere – to process data in a compliant way,
8. Misuse of confidential information: closely linked to data protection issues are issues around the misuse of confidential information, arguably something which is much easier to do when logging in from your home office away from watchful eyes. Will employees have access to, say, printer records when the printer in question is the employee’s? How can employers police the extent to which employees may be taking photos of screens or surreptitiously making records of sensitive information?
9. Practical challenges for training and equipping new recruits: when either they or their trainers operate remotely, new recruits can feel isolated. This could create real issues over staff retention and involve considerable cost to employers. Inevitably the quality of training will be impacted too: so much of what we learn about our professions we learn passively, from being in the same milieu as our more senior colleagues. In the legal profession, for example, it is much easier for a trainee to see how an associate deals with clients / the other side when they just happen to be present when those interactions take place: is the associate really going to pause everything, every time, in order to dial in the trainee?
10. Nurturing loyalty and a sense of belonging: on the one hand, some of these new approaches to work may well have the effect of engendering loyalty through their inherent flexibility and, arguably, the trust implicit in them; on the other hand, however, and in light of what we set out above, less contact with colleagues may make it easier for an employee to feel ‘out of sight out of mind’, to drift away from any sort of workplace culture and even to move to another employer: they won’t even have to clear their desk.
These issues are not a reason to turn back the clock and return to the mindless assumption of office-based working, but employers who are exploring this new post-pandemic workplace may well need to seek legal advice to pre-empt issues so far as possible, to update and adapt policy and processes, and to ensure that their contracts (both new and existing) reflect the new post-pandemic model.
And, of course, not everyone can work from home – many jobs, such as those in the retail and hospitality sectors, cannot be done remotely. So while flexible working practices may well be part of the answer to levelling up the UK economy, they are not a silver bullet. A more holistic approach, which takes into account the needs of all workers in all regions, is likely to be more successful in achieving the government’s goals.
The phrase ‘levelling up’ is derived from the game of Dungeons and Dragons, in which players gain experience points and ‘level up’ their characters by gaining new skills and abilities. The term has been repurposed in the UK to refer to the government’s stated goal of improving economic conditions in disadvantaged regions (in particular, post-industrial areas of the North of England), through investment in infrastructure and services. There are, of course, many who doubt the sincerity of this stated aim.
Flexible working practices, and in particular working from home, are seen as an important part of achieving levelling-up. The thinking is that if people are able to work from home, they will be more likely to move to areas with better job prospects and/or lower living costs, and that this will help to boost the economy in those areas. There is some evidence to support this view. Research by the think tank Centre for Cities found that cities with higher rates of homeworking (defined as people working from home for at least part of the week) tended to have higher employment rates and wages, and lower levels of economic inequality. However, it is worth noting that the study also found that the benefits of homeworking were not evenly distributed across cities – in some cases, it actually made inequality worse. The study found that, perhaps counterintuitively, homeworking was more common in cities with better transport links, suggesting that it is the flexibility rather than the homeworking per se that is in issue here. Moreover, it is of course worth noting that the study only looked at correlations, and cannot prove that homeworking causes levelling up. There may be other factors that are important for levelling up, such as investment in education and skills.
The ILO has produced a report on working from home, From invisibility to decent work. It looks at the evidence for the impact of working from home on productivity, work-life balance, employee engagement and inclusion, and employers’ costs. It also looks at the evidence for the impact of working from home on different types of workers, including women, young people, older people, people with caring responsibilities and people with disabilities. The report finds that working from home can have a positive impact on productivity, work-life balance, employee engagement and inclusion, and employers’ costs.
However, the report also finds that there is a lack of evidence for the impact of working from home on different types of workers, including women, young people, older people, people with caring responsibilities and people with disabilities. The report concludes that more research is needed on the impact of working from home on different types of workers.
Not waiting for the research or the legislature, a number of firms are now reported to be experimenting with how to offer flexible working as standard. Stephenson Harwood made headlines recently for offering a permanent work-from-home option to its lawyers. Those who choose to be based from home will receive a pay cut to reflect the reduced commute time and the flexibility afforded them around where they live. They will only be expected to attend the office one day in a month for which expenses will be available. For those not wanting such a shift the firm will require 60% attendance in the office, itself a significant move away from the pre-pandemic default for most city firms of full-time office-based work.
A survey from the Chartered Institute of Management found that 80% of firms have now adopted hybrid-working with those institutions who push for a full-time return to the office often facing a backlash as Jacob Rees-Mogg has discovered when he sought to draw civil servants back to their desks.
You might be wondering what all of this means for employment lawyers. Here are a few topics where employers are going to need advice because of these sorts of changes. The list is, in fact, endless but here is a ‘top 10’:
1. Managing performance in a remote workforce: where technology is used to manage productivity there are issues of privacy and consent; where technology is not used, practical issues around evidencing performance concerns can arise. A workplace is not a happy one in which employees feel they are not trusted and are being spied on; on the other hand, a workplace is not a happy one in which people feel that their colleagues are not pulling their weight. Employers will need to set clear expectations and set out a clear framework for how they are going to monitor those expectations.
2. Potential direct or indirect sex discrimination: there is a risk of complaints if it emerges that the majority of remote or largely remote workers are parents with childcare responsibilities (read: women) and differences in treatment emerge between the in-office and at home cohorts. This is a complex issue; as the country came out of the pandemic there were a number of tribunal cases coming on for hearing where parents were struggling with the idea of having to return to office work having been able, in effect, to work from home but without arranging alternative childcare. That is a situation many will have got used to.
3. Potential direct or indirect age discrimination: there may well be a potential for complaints where restrictions are applied, for example, to prevent junior workers from working from home or where a minimum length of service is required before flexible working is available.
4. Health and safety: it can be challenging for employers in assessing remote workplaces particularly where employees elect to work in a number of locations at will. How far will the employer’s obligations be taken? Will employers start setting guidelines or even rules for where work can be performed?
5. Jurisdictional issues and tax issues: questions may well arise where employees work internationally (permanently or at will) but are employed by a UK employer. Even pre-pandemic, there was a line of case law on the extent to which UK employment protections applied to workers with minimal ‘physical’ contact with the country.
6. Challenges in managing a workplace culture: with a dispersed workplace, avoiding a ‘them and us’ culture and effectively tackling inappropriate workplace conduct become more complex issues; an issue for junior employees starting out in new workplaces is that they felt they did not know their colleagues well and were less able to pick up on the soft skills that come with working in an office environment.
7. Data protection: this is a significant topic with employees working remotely about which much has been written. Employers will have to give serious thought to where data is stored and the steps their employees are taking – at home or indeed elsewhere – to process data in a compliant way,
8. Misuse of confidential information: closely linked to data protection issues are issues around the misuse of confidential information, arguably something which is much easier to do when logging in from your home office away from watchful eyes. Will employees have access to, say, printer records when the printer in question is the employee’s? How can employers police the extent to which employees may be taking photos of screens or surreptitiously making records of sensitive information?
9. Practical challenges for training and equipping new recruits: when either they or their trainers operate remotely, new recruits can feel isolated. This could create real issues over staff retention and involve considerable cost to employers. Inevitably the quality of training will be impacted too: so much of what we learn about our professions we learn passively, from being in the same milieu as our more senior colleagues. In the legal profession, for example, it is much easier for a trainee to see how an associate deals with clients / the other side when they just happen to be present when those interactions take place: is the associate really going to pause everything, every time, in order to dial in the trainee?
10. Nurturing loyalty and a sense of belonging: on the one hand, some of these new approaches to work may well have the effect of engendering loyalty through their inherent flexibility and, arguably, the trust implicit in them; on the other hand, however, and in light of what we set out above, less contact with colleagues may make it easier for an employee to feel ‘out of sight out of mind’, to drift away from any sort of workplace culture and even to move to another employer: they won’t even have to clear their desk.
These issues are not a reason to turn back the clock and return to the mindless assumption of office-based working, but employers who are exploring this new post-pandemic workplace may well need to seek legal advice to pre-empt issues so far as possible, to update and adapt policy and processes, and to ensure that their contracts (both new and existing) reflect the new post-pandemic model.
And, of course, not everyone can work from home – many jobs, such as those in the retail and hospitality sectors, cannot be done remotely. So while flexible working practices may well be part of the answer to levelling up the UK economy, they are not a silver bullet. A more holistic approach, which takes into account the needs of all workers in all regions, is likely to be more successful in achieving the government’s goals.
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