I recently provided a comment to the BBC on a story they were running on employers banning workers from using email out of ‘normal’ office hours. The BBC was highlighting new research which showed that banning the use of out of hours emails can actually cause some workers stress and anxiety. I made the point that a lot of people want and need to be able to respond to emails outside of traditional working hours if they are to work flexibly in a way that suits them.
This perspective is also supported by recent CIPD research on this subject. A third of UK workers (32%) feel that having remote access to the workplace means they can’t switch off in their personal time and more than half of employees (53%) say it helps them to work flexibly. A further third (30%) say they feel empowered by having remote access to the workplace.
Rather than simply banning the use of out emails out of hours, CIPD believes that employers need to provide clear guidance around the use of email and other forms of digital communication to ensure that if people are accessing emails out of hours, they are doing so because it suits them.
At the heart of this debate is the issue of choice and the extent to which workers can exercise this. This will depend to a large extent on the culture and the quality of leadership in organisations. Line managers need to have regular conversations with their teams to ensure people have manageable workloads and are not feeling forced to work excessive hours or in ways that damage their work-life balance or well-being.
The issue of choice also lies at the heart of the debate about tackling ‘one-sided’ flexibility more widely, where the flexibility in working practices benefits the employer and not the worker. This is a subject which has been the focus of a government consultation that CIPD has recently responded to seeking employers’ views on the introduction of a right for all workers to have reasonable notice of work schedules and compensation when shifts are cancelled without reasonable notice.
CIPD used data from our research on atypical working arrangements as well as a specially commissioned survey of our members and a number of interviews with senior HR practitioners to inform our response.
In terms of the issue of providing variable hours workers with reasonable notice of work schedules, CIPD’s view is that the baseline statutory reasonable notice period should be set at one week.
However, one of the issues that came through strongly in our survey and interviews was the need to ensure enough flexibility so that employers can, in certain circumstances, call on workers at shorter notice without being penalised. For example, one in three of our respondents said a statutory reasonable notice period would reduce their ability to respond to last minute changes such as employee sickness absence or requiring more staff at short notice.
Our interviewees also made the point that this flexibility should be based on the principle that variable hours workers should give their consent to be contacted in such circumstances. A senior HR practitioner working for a large restaurant chain said that while there was standard notice period of two weeks for work schedules, workers also indicate whether or not they are happy to be contacted at short notice if shifts become available. Only workers that have given their consent are contacted, but there is no obligation for them to accept them. Workers are also able to swap shifts with other staff at short notice if their plans change or personal issues crop up which means they cannot do the shifts they had planned to do.
Similarly, a senior HR practitioner working for an NHS Trust said that while ward work schedules are set every six weeks, the nature of health care and the needs of staff meant that there was a requirement for significant additional flexibility which is to a large extent provided by bank staff on zero-hours working arrangements.
Variable hours workers can benefit from the flexibility of being offered work at short notice for a range of reasons. For example, workers with disabilities or fluctuating health conditions who cannot guarantee to being fit to work from week to week or even day to day. A leading disability charity told CIPD that workers in this category can benefit from being offered work at short notice via zero-hours working arrangements as this can enable them to choose to work only when they feel well enough to do so, with no obligation to accept work the rest of the time.
The above evidence underpinned our view to government that the right to a reasonable notice of work schedules should not apply where workers have given their prior consent that they are happy to be contacted at short notice. Employers that request workers to work at short notice without their prior written consent would be in breach of their duty to provide reasonable notice of work schedules.
The other big issue in the consultation was that of compensation for workers if shifts are cancelled at short notice. Our view, again based on the evidence, was that if this happens employers should be required to pay the value of the shift that has been cancelled. The most popular response at 41% of survey respondents felt compensation should be set at the value of the shift cancelled, followed by 25% who said they supported the option of the worker’s appropriate NMW rate multiplied by their scheduled number of hours cancelled.
Another significant question was what should be the cut-off point at which employers have to give their workers notice of a cancelled shift or hours? We had mixed views from members on this, ranging from 24-hours to one week, however because of the particular challenges presented by this issue for some sectors, our view to Government was that this should be set at the lower end of 24 hours.
The health and social care sectors are examples where because of the nature of patient care, there are frequent occasions where demand for services or changes come at very late notice. Feedback from practitioners working in these sectors also highlighted that the demand to arrange and cancel work at short notice also often comes from individuals in some circumstances – not just employers. This again makes the point that flexibility in the modern workplace is important for both employers and workers and the key is to ensure a balance is found where flexibility works for both parties.
When the Government finds the capacity to respond to this consultation, CIPD will ensure that the implications of any changes to legislation are clearly considered and highlighted to members, for example, through updating our Employers guide to atypical working.
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