The terms ‘flexible’ and ‘agile’ working are often used interchangeably.  Generally, they are used to describe an atypical way of working beyond the traditional desk-based 9-5 model. However, agile working and formal flexible working are quite different from a legal and contractual perspective.

Some employers may currently operate informal agile working arrangements within specific teams or across their business which allow employees to work from home on an ad hoc basis. This might provide flexibility to allow teams to work entirely or partially from home (or elsewhere). It can also include the operation of core working hours and compressed working hours.

Through the promotion of agile working, the focus should shift from time and attendance to a working culture that concentrates on results and performance.

As we pass through the coronavirus pandemic, which saw at least half of the UK’s working population move to agile working arrangements almost overnight, and into a new era of working, there are already major companies such as Google, Twitter, Facebook and Amazon who have said they will utilise home working indefinitely.

Many employers have used this period to examine how agile working has embedded (or not, as the case may be) itself into their working culture, including how it has impacted on performance, client/customer satisfaction, resourcing and overall employee engagement.

So if you are an employer considering a more formal agile working arrangement beyond the parameters of the pandemic, what should you consider?

1. Is Agile Working Right For My Business?

First and foremost, there is no legal requirement to operate agile working arrangements but it is often adopted by companies as an initiative to attract talent and increase retention rates, by recognising the changing climate in which people work, and as a tool to promote better work-life balance.

Unlike a formal flexible working arrangement, the operation of agile working practices won’t see a permanent change to an employee’s contractual terms. Furthermore, the operation of agile working practices may allow your business to open out the flexibility to work remotely, whole time or part time, to an entire workforce, department or team.

In considering the role out of agile working practices in the workplace, and whether it could be the right fit for your business, the following should be considered:

• How can agile working be adapted to suit teams or departments in the organisation? Agile working arrangements may not be feasible for all but where it is possible, it should be consistently applied to employees in that particular team or department.
• How can employee outputs and performance be monitored – including methods of supervision and support?
• What financial costs will be associated with implementing agile working? For many, the bulk of this cost may already have been borne in setting people up to work from home during lockdown but for those who have not, you should consider what tech employees may require to work safely and effectively outside of the workplace, bearing in mind the need to secure data in line with GDPR requirements.
• How can you ensure that agile working will have no adverse effect on an employee’s health, safety or well-being? This is often considered to be a key downside of the operation of such an arrangement where employees can feel isolated and may lose out on valuable team and collaborative working that can be vital to their development, particularly at a junior level.
• How will the implementation of agile working impact on existing office arrangements? Will employees retain their own desks or will hot-desking become the new norm?
• What about expenses? Do you propose to offer any contribution to the costs of heating, lighting, electricity and internet costs of an employee’s remote working location?
• Plan for a pilot or trial period in certain teams to test the operation and functionality of an agile working arrangement. This will provide an opportunity for employees to provide feedback to you, and allow you to make adaptions to the arrangement in that lead in time.

2. How Do You Intend To Operate Agile Working?

In many organisations, the implementation of agile working arrangements will limit formality and provide employees with the option to work from home from time to time, or flex their hours. A simple process of applying for agile working may be set up which employees should be advised of through line management and/or promotion of an agile working policy. Agreement to the arrangements should be confirmed in writing with clarification on what has been agreed, and include provision for the arrangements to be reviewed or withdrawn based on business need. Employees will generally have the freedom to decide how they want to avail of agile working, subject to the employer’s right to regulate its operation, for example by setting a day(s) in the week when employees need to be in the office or attend team meetings in the office.

However, if the business intends to make changes to location of work or hours/times of work, for example because of a decision to close or reduce office space, this is likely to involve significant changes to the terms of employment, including location of work and potentially hours of work. Therefore you should consider a period of consultation with employees to seek their consent to the changes rather than assuming they will agree and unilaterally imposing the changes. The following should be borne in mind - collective consultation obligations may apply where the proposed changes apply to 20 or more employees.

3. Do We Need to Have An Agile Working Policy?

The very nature of agile working is to provide employees with greater flexibility without going down the route of formal flexible working arrangements and permanent contractual changes. You may therefore feel that a prescriptive policy isn’t necessary or even counterintuitive to the less formal approach.

Nevertheless, a well-drafted policy can help strike a balance between offering agility and flexibility and setting some boundaries for your organisation. Adding an agile working policy to your employee handbook can also be a clear signal that you are open as an employer to exploring the possibility of more flexible arrangements. This may help strengthen your family friendly policies and employee morale.

As with any policy, you will want to ensure you are clear on what it is trying to achieve for your organisation. You may already have flexible working or remote working policies in place, but these may not provide the desired versatility of agile working.

For example, in terms of the scope of the policy you may wish to state something along the lines of:

“Agile working is about flexibility and as such is not about implementation of a rigid set of rules. As such employees are expected to consider the policy in the spirit it was intended and to engage and co-operate with line management and colleagues at all times to ensure effective service delivery and high customer service standards are maintained.”

Subject to the points made at 2 above, you may also want to clarify that home working will not be forced on employees. This addresses the fact that for many, they like to spend their working time in the workplace, and for a variety of reasons, remote working arrangements do not appeal to them.

A policy gives you the opportunity to:

• Define the types of agile arrangement you will consider
• Set out the parameters such as core hours or time recording requirements that may apply across the organisation.
• Tell employees how they should raise a request and to whom it should be raised.
• How requests will be considered and the factors that will be taken into account by managers such as how work will be managed within the team, how employees can be monitored, the need for rotas to ensure there is always someone in the workplace, etc. You may also want to stipulate that agile working arrangements will generally not be considered if someone is currently the subject of a performance improvement plan or has issues with levels of output.
• Set out how agile working arrangements will be evaluated/reviewed.
• Address who will bear the costs and expenses of home working.
• Refer to any changing arrangements with respect to the workplace, for example, a move to hot-desking arrangements.
• Health and safety – including considerations of workstation suitability, adequate ventilation and lighting. To what extent is this supported by the business in terms of provision of equipment? The business will need to ensure that risk assessments are completed in line with health and safety obligations.
• Clarify that the arrangements do not represent a permanent contractual change and as such, the business reserves the right to make changes to the operation of agile working as business needs require.

With terms such as agile and flexible working used so interchangeably today, making a clear distinction between, and pointing to your flexible working policy and procedure is also advised to ensure that employees understand which policy and procedure will apply to their requested working arrangements.

It is also advisable that an agile working policy aligns with other Company policies such as IT/Acceptable Use, Health & Safety, Performance Management or Monitoring, and that aspects of those policies that are specific to agile working are re-enforced.

Key takeaways

1. Agile working is a rapidly evolving area. Understanding the difference between flexible and agile working, the contractual implications and potential downsides, will help you manage requests for greater flexibility and help prevent problems.
   
   
2. Thinking ahead now about how your organisation may be able to facilitate and respond to requests for agile working, and preparing any necessary policies will help reduce pressure as workplaces re-open. It may also be a welcome solution to potential challenges faced by large swathes of employees seeking permanent home working arrangements through flexible working requests.
   
   
3. Agile working can be a great tool to increase moral and employee retention rates as our working culture increasingly demands more flexibility and work-life balance as standard.