The pandemic revealed that the traditional office based nine-to-five, five day a week working model may no longer be fit for purpose. As a result, many organisations have adopted a hybrid model. However, as the campaign for a legislated four day week continues to build momentum, some companies are looking to see whether a four day working week can be beneficial for both their business and their employees.
A number of companies have opted to take part in a trial of the model including a nationally known supermarket who is offering their employees the option of working four days a week in an attempt to boost efficiency, whilst giving their employees more flexibility without compromising customer service.
Whilst a four day week may sound good in theory, putting it into practice could give rise to a number of potential legal and commercial implications:
Impact on flexible working requests
It is unclear how, and to what extent, flexible working requests and a statutory four day week will interact. However, given the move to greater flexibility that a four day week will encourage, it is perhaps inevitable that there will be an increase in flexible working requests with, for example, those employees currently working working flexibly four days a week, seeking even more flexibility and even shorter hours. Currently, employees who have worked for their employer for more than 26-weeks have the legal right to make a request.
Employers are required to give proper consideration to the request. This means that a request could be rejected, provided that there is a good business reason for doing so.
There is an interesting interaction here between flexible working requests and unfair dismissal law.
Ordinarily, only employees who have been working for their employer for more than two years have the right to claim unfair dismissal. However, if an employee with less than two years’ service is dismissed for asserting a statutory employment right, then their dismissal will be automatically unfair. This often comes as a surprise to many employers who believe that, with less than two years’ service, an employee has very little protection.
Take this example: An employee with eight months service makes a request for flexible working. Their employer rejects the request, and they subsequently fall out. The employer then terminates the employee’s contract. The employee is unhappy with this and makes a claim for unfair dismissal.
Although the employee has less than two years’ service, they still have the right to make an Employment Tribunal claim if they believe that the real reason for dismissal was because they had asserted an employment protection right – that of a flexible working request.
Variations to employment contracts – future proofing
To guard against a four day week not working out, consideration should be given to ‘future proofing’ the employment contract, for example, by reserving the right, on reasonable notice, to increase the working week back to five days. Even with this explicit contractual right, an employer must still act reasonably. The failure to do so could amount to a breach of the implied term of trust and confidence leading to a resignation and a claim for constructive unfair dismissal.
Employers will need to ensure that they remain compliant with health and safety legislation, including the Health and Safety at Work Act 1974. The Act places a legal obligation on an employer to provide a safe place and a safe system of work, both of which could potentially give rise to issues. A risk assessment may be needed to address key considerations such as whether it is possible for an employee to undertake a job safely in a shorter period of time.
Conflicts of interest
There is a risk that an employee may try to find other work on the days that they are not working and may even attempt to work for a competitor. Therefore, current contracts of employment should be carefully reviewed. If the contract is silent, it would be worth considering inserting a clause that restricts or prohibits an employee from working elsewhere in their free time.
Impact on current part time workers – ‘matching the offer’?
Employees who are currently working part-time and who are contracted for, say, four days a week, may complain (and raise grievances) if their colleagues, who currently work five days a week, are given the option to work four days without a reduction in their salary. Would those part time employees remain subject to their original pro-rated contracts, or would they be entitled to the same pay as their ‘new’ colleagues? There may also be issues of indirect discrimination.
Five days into four days – managing incomplete work
The model is based on the aim of maintaining 100% of the efficiency, in 80% of the time for 100% of the pay. However, employers will need to give careful consideration as to whether it is possible to fit an average of 37 – 40 hours’ worth of work into 32 hours without a reduction in output or health and safety issues. Therefore, the management of work would need to be closely monitored, and contingency plans would need to be put in place, to address how incomplete work would be managed. Would, for example, a work rota need to implemented to ensure that there are no delays and what impact would that have on other employees employment contracts?
Written Jonathan Waters
Principal at My Inhouse Lawyer
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