Under the UK’s current guidance for getting employees back into the workplace following the coronavirus outbreak, one of the measures is for businesses to introduce staggered hours. The idea is this would reduce the number of people travelling at any one time, therefore, will hopefully reduce the risk of spreading the infection, and support the safety of employees.
What are staggered hours?
The government defines staggered hours as when ‘an employee has different start, finish and break times from other workers.’
Once the start, finish and break times have been chosen or agreed, they should remain unchanged, making them different from flexitime working.
Legal rights
Employees have statutory rights, such as working time, flexible working and anti-discrimination legislation, as well as rights from their terms and conditions of employment in regards to working patterns.
The best approach to make changes to an employee’s working arrangement is always to agree those changes with employee.
If the business requires employees to have staggered hours, best practice would be for employers to:
- explain all relevant matters, in this case issues and concerns arising from the COVID-19 pandemic;
- the likely period of the changes (assuming they are temporary);
- the benefits to the workforce; and
- discuss any employees’ concerns.
To make a permanent change to employees working hours, this would be a contractual change, and therefore a different approach would be required.
Employers who attempt unilateral changes to employees’ contracts without agreement will be in breach of contract.
An employer can make a change (‘variation’) to an employment contract if:
- the employee agrees to the change;
- the employee’s representatives agree to the change (for example, a trade union).
Flexibility clauses
Not all flexibility clauses give employers a legal right to make unilateral changes to an employee’s contract. Whilst a necessary mobility clause, for example, may be effective, flexibility must always be in accordance with mutual trust and confidence.
It would be risky for any employer to simply vary an employee terms and conditions of employment even if there are specific flexibility clauses which seem to give an employer the power to make the change.
Discrimination
Normal discrimination laws apply during the pandemic and so employers should not discriminate in the working patterns they adopt.
Business should be careful that any new working patterns do not give rise to indirect discrimination, particularly amongst women who, statistically are the main childcare providers.
Indirect discrimination would occur when an employer implements a working practice, such as a change to staggered hours, which has a detrimental impact on a particular female employee and women in general as the main carers.
The business needs to be able to objectively justify reasons and be able to demonstrate that it has a legitimate business aim which couldn’t be achieved in a less discriminatory way.
How to make staggered hours’ work?
Staggered hours should enable employees to return to the workplace and continue to operate both effectively and where possible at a safe distance (more than 2 metres) from one another. The Government guidance suggests that from a practical perspective business could consider:
- splitting employees into teams with alternate days working from home, or splitting across a day and night shift;
- where possible, where employees are split into teams, fixing these splits (cohorting), so that where contact is unavoidable, this happens between the same individuals;
- spreading out standard processes, so that only one team needs to be on the premises to complete a task at a given time; and
- where possible to remain 2 metres apart, using signage such as floor markings to facilitate compliance, particularly in the most crowded areas. This includes entry points to buildings, toilets and communal break areas where queues may form.
Businesses should also try to facilitate the following where possible:
- stagger employee breaks and lunch breaks;
- avoid the use of hot-desking where possible to reduce the risk of infection;
- position workers facing away from each other, again to reduce the risk of infection.
It is always good practice to communicate effectively to employees during any changes, and also seek their feedback.
Using staggered hours and flexible working to return to the workplace also need to be accompanied with social distancing measures and high standards of hygiene and regular cleaning/ disinfecting to help support health and safety at work. More information on this can be found on the Government website.
If you would like further guidance or support on this matter or require advice on other people management matters please contact Clover HR on 0121 516 0299 or email us at info@cloverhr.co.uk
Copyright Clover HR
