The future of flexible working

At the beginning of the pandemic, businesses had to rapidly adopt new ways of working and enable staff to work from home as much as possible. Nine months on, the threats posed by the virus remain, and ways of working have changed beyond recognition.

We consider below the longer term impact of COVID-19 on flexible working, and the extent to which employees are willing (or not) to return to their ‘normal’ place of work.

Just as a new government campaign was set to be launched encouraging employees back to work, a new tier system was introduced in the latter part of 2020, with various restrictions on travel and work depending on location and type of industry. As we endure a third lockdown with ever increasing restrictions, there is likely to be a longer term impact on how employers embrace flexible working practices in the future. There are obvious challenges facing both employers and employees who remain concerned about the safety of the workplace, coupled with the need to kickstart the economy and prevent further job losses. We commented last summer about how to approach employees who refuse to return to work, either because they are in a vulnerable category, or because they are refusing to return without a valid reason. It is clear that there are pressing considerations for those having to make the difficult decision between safeguarding their health and protecting their future job prospects.


If an employee refuses to come back to work for a valid reason (because they are classed as clinically vulnerable), an employer may ask them to take annual leave, paid sick leave, or offer flexible work arrangements such as reduced hours or remote working. Whilst these options may be limited in scope, they may help to soften the blow for those individuals who are unable to return to their normal place of work at least in the short term.

For those employees who are able to work remotely, studies have shown that these employees have been as productive if not more productive during the pandemic according to a report by academics at Cardiff and Southampton Universities. The report entitled Homeworking in the UK: Before and During the 2020 Lockdown involved thousands of people between April and June 2020, and presents evidence on the scale and shift of homeworking, its impact on wellbeing, productivity levels and prevalence of remote working once social distancing measures are fully lifted. The same survey indicated that 9 out of 10 employees would prefer to work from home in the future. It is difficult to see therefore, how a wholesale return to the old way of working 5 days a week in the office would work in practice. According to a report by KMPG, half of all workers in the UK’s financial services sector want to continue to be able to work from home for at least part of the week when the COVID pandemic passes.

Health & Safety concerns

When returning to any work environment, it will be critical for employees to maintain social distancing, and for employers to have carried out a comprehensive risk assessment ensuring a COVID safe workplace. Whilst employers will be well equipped by now to put these necessary measures in place, there may be a concern among some employees that the journey to work itself may not be safe. In a bid to combat these fears, the Department for Transport has issued a guidance document setting out how to travel safe during the pandemic.

There is some debate over the extent to which an employer can be liable for their employees’ health and safety during their commute to work. An employer’s obligations towards their workforce stem from a variety of health and safety legislation and common law duties of care. For businesses looking to reopen once the current restrictions are lifted, engaging with employees is recommended as soon as possible to understand potential concerns ahead of time.

In our recent Future Cities campaign, we canvassed opinion from a panel of business leaders on whether the office is still relevant in a post-COVID society. The overwhelming response was that employers will need to remain flexible in meeting the demands of both their workforce and customer/client base. Indeed, we are seeing that the response to flexible working during the pandemic has differed depending on the type of business and the requirements of different industries.

The international approach

How does the picture differ overseas? In Germany, there is currently a debate on whether employees who opt to receive the vaccine should be awarded a so-called vaccination bonus to encourage participation with the aim of protecting the rest of the workforce and encourage a safe return to work. In France, working from home is to be preferred whenever possible due to the ever increasing numbers of COVID positive tests. It is clear that the threats to the ‘normal’ way of working are here to stay, not just in the UK, but globally.

Looking ahead

How will the flexible working change in the future? Change has already happened and is here to stay, and employers will need to consider a variety of different legal issues when bringing staff back to work over the months ahead. It is clear that whilst remote working certainly has its benefits, there is still a need for a physical place of work, especially where jobs cannot be done remotely.

With the unemployment rate currently at 4.9%, it is not surprising that job vacancies are below pre-pandemic levels, with the ONS reporting that these are 31.5% less than a years ago. However, it appears that there has been a surge in demand for certain types of roles, with a rapid rise in tech job vacancies in the UK digital sector by 36% according to analysis from government backed entrepreneur network Tech Nation. The position is different in the non-food retail sector however, with the number of front line roles reducing because of a lack of consumer confidence in buying goods in person, preferring online sales instead.

Flexible working is now being seen as the norm, with many job adverts promoting flexible working as an inherent part of the benefits package. Businesses have had to adapt and react in a short space of time, and this has impacted how employers manage their workforce. Business performance is measured in employee and brand satisfaction which are the main drivers of change in this new normal working environment.


This information is for general information purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Please contact us for specific advice on your circumstances. © Shoosmiths LLP 2024.



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