This aticle was written by Naomi Oppenheim, Solicitor at Fladgate LLP.

Marissa Mayer’s announcement that all flexible arrangements at Yahoo! will end this June has been widely reported in the press recently. Ms Mayer is not the only leading business figure of late to view flexible working as a barrier, rather than a bridge, to a productive working environment. Alexandra Shulman, editor of British Vogue, agrees that this practice doesn’t provide the desired synergy within the workforce.

Does this represent a paradigm shift away from the trend of the last decade toward flexible working? For every ‘dissenter’ there is a fan of flexible working. Heather McGregor, MD of executive search firm Taylor Bennett, wrote a compelling article in the Guardian supporting flexible working. Vodafone UK’s Enterprise Director, Jeroen Hoencamp, also encourages embracing different working practices to allow employers to make significant savings and implement working arrangements wholly suited to their business needs.

Current law gives the legal right to request flexible working (following a prescribed statutory procedure) to employees caring for children or adults only. While employers can refuse such applications, they can only do so on limited grounds and must take care not to trigger discrimination protection for the employee making the request.  The coalition government has also demonstrated its support. It proposes to allow (i) mothers and fathers to share periods of parental leave with greater freedom to choose how leave is taken, and (ii) all employees, not just working parents, the legal right to request flexible working. Within the parameters of the legal framework, any business looking to adopt a flexible working model should focus on whether it serves its operational needs. There is no ‘one size fits all’ approach. Our experience of advising businesses on flexible working models has highlighted the following considerations:

The good:

• Costs savings: smaller offices mean lower rent and business rates, as well as reduced costs associated with running an office. A recent Vodafone survey suggests that the UK could save over £30 billion annually if more businesses adopted flexible working practices.
• No commuting: commuting can often equal working time. Businesses are growing globally, which could make factoring time differences into one’s working day much easier.
• Greater productivity: there are more distractions working in an office than at home − water-cooler chats, office admin, loud appliances, walk-in clients etc.
• A more flexible schedule: those who work on a flexible basis tend to do so because of personal commitments such as caring for children or dependants. Allowing employees to work around these commitments (i) engenders greater trust, and (ii) allows them to prioritise completing a task at a time convenient to them. This may be preferable to employees attending the office for a specific time period and rushing to complete work to squeeze in the school run.
• Retain your talent: balancing personal and professional life is becoming increasingly important when considering job benefits. Many employees view flexible working as a fundamental benefit, which can buy an employer a lot of goodwill and attract talent that might otherwise go to a competitor.

The bad:

• Performance/disciplinary issues: it can be more difficult to monitor an employee’s level of performance or any misconduct if they attend the office less regularly. Gathering evidence of any disciplinary/performance concerns with a view to supporting action against an employee may also prove more difficult.
• Data protection: flexible workers will need to be able to access their employer’s IT network remotely. Are your IT systems sufficiently secure?
• Confidentiality and negative statements: yes, smartphones allow employees to post updates, tweet or blog about anything, anytime and anywhere. However, being away from the office can increase one’s psychological distance from the workplace, allowing employees to feel freer to divulge confidential information or rant about something at work they are unhappy about, online.
• Less collaboration/shared insight: sharing ideas and experiences can help solve problems or promote innovation. Will that be reduced if employees’ physical interaction is reduced?

What are the legal issues?

• Contractual changes/policy reversal: this will be an inevitable issue for Yahoo! in changing its flexible working policy. You’ll usually need employee consent to vary existing flexible working arrangements. This will require you to (i) engage in a meaningful consultation before making the change, and (ii) have a strong business reason for making this change if employees won’t agree to it. If you can tie the change to market changes or a topical news item, or offset it with a perk, your proposed change may be better received.
• Constructive dismissal/discrimination claims: your conduct may entitle employees to resign in reaction to your breach of their contractual terms, so try to avoid forcing through negative changes. Also, if your policy change affects employees who share a protected characteristic e.g. sex or disability, less favourably than other employees, you may fall foul of discrimination legislation.
• Policies: confidentiality, use of IT systems and company property, data protection, disciplinary issues can all be impacted by flexible working practices. Setting out the required standard at the outset will let everyone know where they stand, but you must take reasonable steps to enforce your own rules.
• Performance/conduct: schedule regular in-office updates between employees working remotely and their line managers to discuss their work, any issues arising from it and any concerns the line manager has. It also helps to have detailed job descriptions in place setting out reporting lines, methods and targets.
• Health and safety: for those working away from the office, ensure that any electrical equipment provided is suitable for use. Retaining the contractual right to enter an employee’s home (on reasonable notice) to undertake health and safety checks and retrieve company property/confidential information on termination is a good idea.

Perhaps flexible working’s greatest detractor is its negative perception as the working practice of ‘skivers’. This is an unfortunate perception as many employees consider flexible working to be a valuable benefit. Employers should not ignore the knock-on effect of increased productivity in a happier employee. The difficulties associated with flexible working can be managed by taking practical steps to address the aforementioned adverse consequences.

Technology today provides a strong foundation to support flexible workers. Putting into place the right policies and contractual framework and keeping on top of any issues will help make this a viable practice. If Yahoo!’s published U-turn on flexible working is taken up by other organisations, this could cause some tricky issues for UK employers. They could be missing a trick commercially, as a well-run, flexible working scheme can be of considerable commercial benefit to employers.