From an employee’s perspective, there may not be a good enough reason to return to the “old normal” – essentially working 5 days a week in the office – particularly if they feel that remote working has been a success, argues Charlie Thompson.
One potential route for employers to take is the introduction of a 4 day week.
A “4 day week” will mean different things to different people. The first key question will be – how is it implemented? Most people like the idea of a shorter working week, but many employees in favour of a 20 percent reduction in working time may be less enthusiastic if it is accompanied by a 20 percent pay cut.
Employers will also need to think about whether a 4 day week is rolled out company-wide – so that the company’s business days are only Monday to Thursday, for example – or instead whether it will continue to be open all week, with each employee on a different 4 day schedule.
Will employees stick to a 4 day week?
A key factor for employers to consider is whether it is genuinely possible to ensure that a 4 day week is respected by line managers and the conscientious staff, many of whom already work well beyond their contractual hours for no extra salary. Many businesses, especially those in competitive service industries, are already familiar with clients who make urgent requests late on a Friday afternoon – it can be hard enough to provide service to those clients 5 days a week, let alone 4. Employers who implement a 4 day week will need to think carefully about how they will ensure that staff only work 4 days a week without affecting service levels.
The scale of this obstacle may not be as large as it first appears. One of the most commonly accepted flexible working requests is to move down from 5 days a week to 4. It is not a huge leap to roll that out across an entire workforce, whilst ensuring that every business day has sufficient coverage. Employers might however need to have a higher headcount, in order to ensure the business is properly resourced.
A 4 day week will also need to be consistent with shifting attitudes towards working hours in the last few years. It is increasingly common for employers to embrace working practices where employees work unconventional hours and, for example, be less responsive at school pick-up time, and then respond to emails later in the evening or over the weekend when there is some more free time.
If the premise of a 4 day week is to carve out the other 3 days as non-working days, employers will need to consider how to reconcile that rigidity with the flexibility some employees have in relation to their working patterns.
Pay and other considerations
If an employer decides to adopt a 4 day week without imposing any pay cut, it will need to think about its employees who are already working part-time, who are likely to be aggrieved if their colleagues are now being paid more pro-rata than them.
On the other hand, if an employer wishes to adopt a 4 day week with an accompanying pay cut, it will need to address the thorny problem of obtaining employee consent. The starting position is that any variation to an employment contract must be agreed by both parties, and so if an employer imposes a cut unilaterally, it faces potential claims for unlawful deduction from wages and constructive dismissal.
A sensible first step for any employer considering a 4 day week is to run a pilot with a sample of employees. This gives an opportunity to identify whether it works. The logic behind a 4 day week with no cut in pay is that it will drive efficiency and productivity. Accordingly, a pilot should include ways of measuring whether that logic is true for the organisation.
As normality appears to be returning to our lives, we can expect many underlying, dormant disputes to spring to life. It is therefore important for employers to evaluate their current situation and devise a system that meets the needs of their employees.
Flexibility will be a key consideration for modern employees, who are no longer used to previous working habits. Keeping employees happy is not only important for productivity, but it will also reduce the risks of losing them. Employers must consider this to remain future facing and avoid any potential legal disputes.
Charlie Thompson is an Employment Lawyer and Partner at Stewarts who advises employers, employees and LLP members. Charlie is an experienced litigator not only in the Employment Tribunal but also in the High Court and appellate courts up to the Supreme Court.