What if the CEO asks me about… the future of hybrid working in retail?

The pandemic brought flexible working to the forefront of how we work, with most employers adopting some form of hybrid working.

Three years later, the move towards different ways of working has gathered momentum, with the Government confirming in December 2022 its intention to overhaul the law on the right to request flexible working to make it a default "day one" right for all employees.

While those who work on the shop floor or in a warehouse may not be able to do their role from home, they may wish to benefit from other forms of flexible working. For example, a growing number of retailers such as Morrisons, M&S, Sainsbury's, Dunelm and Superdry are reportedly trialling a four-day working week for certain employees. Failing to strike the right balance between the competing commercial needs of the business and the increasing demand from employees to embrace flexible working can raise employee engagement issues and, potentially, legal risks.

 
The legal framework

While the term "hybrid working" came to the fore during the pandemic, it is essentially a form of flexible working, a concept first introduced legislatively in 2003.

"Flexible working" can relate to working hours, the times required to work, or the place of work. Other examples include:

• home working (which may not be possible for employees on the shop floor);
• part-time working (far from a new concept for the retail sector);
• compressed hours (more relevant for office staff in the retail sector); and
• flexi-time working (which may not be appropriate for certain retail employees).

Employees do not have a statutory right to flexible working, but they do have a right to request it, provided that they have at least twenty-six weeks' continuous employment and have submitted a written request in accordance with the legislation.

You must deal with such requests reasonably and provide a decision within three months. Requests can be rejected, but only for legally prescribed reasons including:

• burden of additional costs;
• detrimental effect on your ability to meet customer demand; or
• detrimental impact on the quality or performance of the employee's work.

The legal risks
 
If you breach the above statutory procedure, the employee can make a claim, which if successful, can lead to the award of up to eight weeks' pay (subject to a statutory cap).

How you respond to flexible working requests is often a measure of how inclusive you are as an employer and could, potentially, raise the risk of discrimination. For example:

• you may face a claim for indirect sex discrimination if your organisation's policy on flexible working places women (more likely to have childcare responsibilities) at a substantial disadvantage compared to men;
• alternatively, you could face a direct sex discrimination claim if only requests by women are accepted; and
• disability discrimination is also a potential risk, where a request amounting to a reasonable adjustment is refused.

There is no limit on compensation for discrimination claims and no minimum length of service required to claim discrimination. Where a request is denied and employment ends, other potential claims include automatically unfair dismissal and constructive dismissal.

Managing down these risks requires careful consideration of each request on its own merits.

How can retail adopt hybrid working?

The quest for a better work-life balance has become an increasing priority for workers, with 90% of employees now wanting flexible working. However, according to the Office for National Statistics, those in professional occupations were almost four times more likely to work from home than people in sales and customer service roles.

As with any position, the ability for shop-based staff to work from home will very much depend on their role. In circumstances where the role is purely customer facing, home working may be impossible and it will depend on whether the role includes other duties which can be carried out from home (e.g., setting rotas, administration).

With the rise of online shopping, you could consider offering shop-based staff the option to train in providing online customer support from home (e.g., through website chat rooms) as part of their role. This would ensure that you are matching your online customer support with your in-person shopping customer experience whilst also allowing shop-based staff to benefit from hybrid working.

With the retail sector still facing staff shortages, offering remote working in some roles may also allow you to better compete for candidates.

Reforms

On 5 December 2022, the Government confirmed its intention to introduce reforms to the right for employees to request flexible working, including:

• making it a "day one" right;
• requiring employers to consult with the employee to explore available options before rejecting their request;
• allowing two statutory requests in any twelve-month period, rather than the current limit of one;
• requiring employers to respond to requests within two months, rather than the current three-month timeframe; and
• removing the requirement for the employee to explain how the employer might deal with the effects of their flexible working request.

Whilst we await primary and secondary legislation to bring the flexible working reforms into effect, hybrid working looks set to stay and there will be an increased focus on flexible working for those who, due to their role, cannot work from home.

Retailers will therefore need to continue to find ways of weaving flexible working into the fabric of their operations - for example, by introducing four-day compressed weeks or nine-day fortnights, whereby employees work their contracted hours over fewer working days to enable them to have more days off.

Genuinely flexible working can ultimately help to foster a diverse and inclusive work culture as well as attract and retain the best talent, provided that the right checks and balances are put in place to ensure workloads do not become unmanageable or affect a person's wellbeing.

To hear more about the law on flexible working, as well as a personal account from two of our RPC colleagues on their experiences of flexible working and how it has impacted their careers, please click here to listen to this episode of The Work Couch, RPC's new podcast on all things employment.

 

Disclaimer: The information in this publication is for guidance purposes only and does not constitute legal advice. We attempt to ensure that the content is current as at the date of publication, but we do not guarantee that it remains up to date. You should seek legal or other professional advice before acting or relying on any of the content.