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        Flexible working: Bending the Norm?

        Employment rates in the UK are at an all-time high according to recent studies, with as many as 32 million of the population now involved in some form of paid employment. Conversely, however, it has also been reported that as few as six per cent of that number work the traditional 'nine to five' week that was previously the staple of British working life. 

        Date: 05/09/2018

        PwC are the latest company to grab headlines when it comes to establishing a more 'flexible' workforce. The new scheme they have introduced affords new recruits the opportunity to work only the hours that they choose via their Flexible Talent Network (FTN) scheme. In essence, the scheme allows prospective candidates the opportunity to specify when, where and how long they would like to work. Those candidates will then be assigned to a project that matches those requirements, and PwC will consequently benefit from a talent pool that isn't able to typically commit to a 'normal' working week. On the face of it, everyone's a winner.

        In many ways, this is the next natural step in the evolution of the 'gig' economy. Anyone who has ever shared a few minutes of small-talk with their Uber driver in recent years will have probably heard how beneficial this sort of working arrangement can be for them. They will also have probably heard that it doesn't only attract low-skilled individuals who have family commitments to work around. It also offers an opportunity to those who are looking to set up their own business, or those who are in the process of retiring and are looking for some supplementary income. PwC has perhaps recognised that there will be a vast amount of talent within this demographic, and those within it may be more inclined to apply for a role at PwC than drive a taxi or pick up the odd shift in a coffee shop. 

        The FTN scheme certainly appears to have been popular, receiving near-universal praise from industry experts. With many big companies now looking to 'out-do' each other when it comes to promoting progressive values within their working cultures, it is anticipated that many of PwC's rivals will gradually begin to follow suit. Companies would therefore be well-advised to give some extra consideration to how they respond to employees' flexible working requests moving forwards, in the knowledge that they may well be able to enjoy that flexibility elsewhere before too long. One obvious concern about the gig economy expanding in this way is how it will affect the rights of those participating in it. However, the Taylor Report, published earlier this year, should provide some comfort to those who would like to work in a more flexible manner but perhaps would not wish to compromise their rights to sickness and holiday pay.

        Whilst it seems like the days of 9-5 are fast becoming a thing of the past, there is still some considerable way to go before we reach that point. In addition, improved technology has managed to bring an additional layer of uncertainty with regard to when people are actually 'working' these hours. A study from the University of the West of England recently found that the extended Wi-Fi networks available on trains has resulted in 54 per cent of commuters spending their journeys to and from work checking their emails. The study suggests that this has “blurred the boundaries” between home and work, and even argues that those commuters ought to be paid for time spent checking those emails. 

        The report isn’t especially clear about how this would work in practice. It makes little comment about whether the employee should simply be paid for the time that they are commuting, or whether there is a more nuanced system where payment would be based on what proportion of that journey was actually spent working. If it is to be the former, it could well give employers headaches about whether affected employees’ extended hours would put them on the wrong side of the Working Time Regulations 1998. These regulations dictate that workers should not be required to work more than 48 hours per week without signing an opt-out agreement. 

        Similarly, one would have to consider whether those employees who have now been ‘working’ an additional 8-10 hours per week have been doing so at an overall salary which does not meet the National Minimum Wage ('NMW'). Whilst there may be a presumption that those who don’t feel that they can be away from their emails for prolonged periods of time would be unlikely to be the ones worrying about the NMW, this cannot be stated with any certainty. 

        It would be churlish to ignore the good intention behind the report and the questions it has posed about how far we can sometimes push ourselves in our jobs, however, one would still have good cause to critique some of its conclusions. For example, if employees deserve to be paid for each email read whilst on a train home, would that make it fair to deduct pay for any time spent away from their desk in the office making a cup of tea or going out for a cigarette? Should the individual be paid for just having a glance over something that’s popped up in their inbox on the train home, or should the payment be dependent on whether an email was actually replied to? If so, should the length and quality of that reply be compared with one that was produced whilst in the office? Could those without a commute simply stay in the office for an extra hour with their inbox open and expect payment for that time? Or should those being paid to check their emails on the way home also ensure they are available to take phone calls from their bosses or clients?

        Again, there are clearly some valid points raised by the report and it would be unwise to dismiss its findings on the basis that they are not fully formulated. With record numbers of people reporting that their workloads are putting a strain on their mental health, the temptation will always be there to log in to emails and sort out what they can during the 'dead' time they spend travelling each day. The question therefore moves on to whether employers should look at the root cause of the stress that leads employees into feeling that they can't 'switch off' and read a book during their journey, or whether they should instead allow their workforce to utilise this time to alleviate the pressure put on them earlier in the day. There are good arguments to support each side and, like most issues, this would probably be best resolved by allowing each individual organisation the opportunity to consult with its workforce to see what works best for them.  

        It is also worth noting that improved technology can also promote improved flexibility.  Employees who have a hard finish time for caring responsibilities may well find that being able to pick up an email whilst commuting ensures the flexible arrangement works.  Employers can benefit from a wider talent pool, encompassing those who need flexibility and employees are able to combine a challenging career with their caring responsibilities.  
         
        Author: Oliver Sargent

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        Joanne Frew

        • Director // Head of Employment (Manchester)