The dramatically changed working environment during the pandemic has led many to consider whether in fact they wish to go back to the bad old days of pre-pandemic working, with long commutes, pointless meetings, juggling childcare and the stress of long working hours.
A few weeks ago, supermarket giant Morrisons announced it would be switching staff at its head office to a four day working week, with overall weekly hours reducing to 37.5 from 40 but maintaining the same salary level. Staff will have to work a six-hour shift on one in every four Saturdays but apart from this will benefit from the dream of three-day weekends. Morrisons hailed the new working arrangements as supporting work life balance and an aid to staff retention, making it an attractive place to work. The changes were in the planning stage pre-pandemic but took effect from 27 July in line with plans to return to office-based working and have helped to stimulate the debate on what post pandemic working life should be, for those lucky enough to still have jobs.
Post pandemic working is a new hot topic. Employers, whether they like it or not, now have to confront a brave new world. How enthusiastically are we going to encourage office-based staff to return? What if these staff do not want to return? The genie is out of the bottle on home working – but is this really a long-term proposition for our business? For those businesses who need to reduce costs or are facing a reduced demand for their services, how can they realign their workforce?
In terms of a four-day working week, momentum on this picked up during the 2019 election campaign with Labour floating the idea of a 32-hour working week with no loss of pay to be achieved within 10 years. That did not excite voters. However more recently a group of campaigners sent a formal letter to Chancellor Rishi Sunak arguing that a four-day working week would, during an economic crisis present the best opportunity for fundamentally restructuring the economy so that work is shared more equally, and in effect to cushion against mass unemployment. It would also bring benefits of reducing stress levels and allow people to spend more time with their families, something which most people would argue has been beneficial during lockdown. The letter urges Mr Sunak to set up a commission to consider the benefits of this. However, faced with an immediate changed post pandemic expectation from employees, and a potential need to save payroll costs, might many other employers seek to follow Morrison’s example, or introduce plans of their own?
The legal positon
This would not be a legal blog without a bit of law – so it would be remiss not to add that employers should tread carefully if they are considering plans of this kind. Moving from a five day to a four-day working week, whether accompanied by a salary reduction or not, is likely to mean a change in contractual terms. For the change to legally take effect both parties must consent. Employers should consult with their staff and explain the benefits of the proposed changes and the business reasons. Where employees do not agree to the changes employers have a number of options to proceed. These include making the changes anyway (after consultation) and hoping that staff stay and ultimately relying upon what is known as “implied consent”. However, this path can lead to uncertainties - whether employees can be taken to have impliedly consented to the changes is uncertain, and employees have the option of resigning and considering a claim of constructive unfair dismissal or remaining in their employment and suing (if they can) for breach of contract.
Another option that employers might consider is to terminate the contracts of those that do not agree and offer them re-engagement on the new contract. This approach, whilst more certain, leads to the risk of legal claims in relation to the dismissals, and the risk of industrial relations problems if trade unions are involved.
Finally, where an employer is proposing to dismiss 20 more employees at one establishment in a period of 90 days it must inform and consult with employee representatives including any recognised trade union. This requirement applies both to redundancy dismissals and to dismissals to effect changes to contractual terms. Expensive legal claims might follow if this process is not followed.
Are you considering post pandemic changes to working arrangements? Please contact your usual Brabners employment contact or Zainab Gulamhussein for more information.
