If you or members of your team are working remotely for some or all of the time, you may already have encountered some challenges in performance management.
With reference to recent complaints about HMRC service levels in respect of their work from home policy, James Froud, Legal Expert and Employment Partner at Law Firm, McCarthy Denning, highlights why and how this problem is likely to impact firms more broadly as working patterns change.
Recent reports of complaints by taxpayers about HMRC service levels will have surprised nobody with experience of dealing with the organisation. It has been a consistent source of frustration for many years.
A simple Google search unearths a Guardian article from 2010 with the headline: “HMRC tax helpline overwhelmed” and the strapline: “HMRC admits that taxpayers phoning its helpline are being cut off or left in queues”.
Fast forward to 2023 and ‘customers’ seeking urgent advice ahead of filing tax returns before the 31st January deadline have been complaining of being made to wait an hour or more for call handlers to answer their queries and/or being disconnected before response was received.
One such customer took to Twitter to announce: “kept on hold for about two hours and then the call ended before I could speak to anyone. I’m really trying to get you some money. Would appreciate any help!”
Groundhog day?
Back in 2010 an issue with PAYE coding notices was to blame. This year, the spotlight is on the Revenue’s flexible working policy.
Having facilitated enforced remote working during the coronavirus pandemic, it is believed that HMRC introduced a new flexible working policy during the summer of 2021 allowing employees to work from home two days per week.
This author has not had sight of the actual policy but HMRC’s website publishes its key employment terms and states:
“Employees working in roles graded up to and including Grade 6 will have access to a Flexible Working Hours Approach (unless notified that the role is unsuitable). Where the role is suitable, employees will have the opportunity (though not a contractual entitlement) to work from home for 2 days per week, or more where the business agrees…” Note 1 Industry commentators have suggested that HMRC is not equipped to handle working from home and also provide a high level of customer service to the taxpayer, with one saying: “HMRC moved quickly to allow work from home, but technology did not adapt quickly to them. It can be good for employees to have this flexibility but a balance has to be struck…”
Striking the balance
This takes us to the nub of the issue. How can the balance be struck? It is important for employers to get to grips with this as soon as possible, particularly as the Government is pushing ahead with its policy of making flexible working the default and giving employees the ‘day one’ right to request flexible working – as announced in December 2022.
So: How can an employer address concerns about performance in staff working from home?
Consistent performance management should not be reserved solely for those attending an employer’s premises. Indeed, diligence in tracking performance of remote workers is likely to prove even more important, as the lack of proximity and face-to-face time will inevitably make it more difficult to manage.
Flexible working policies should dovetail with disciplinary and performance review policies to inform employees of the expectations on them and to enable employers to take action where performance standards are not met.
Flexible working policies should themselves be flexible, allowing employers the discretion to adapt the rules and/or to remove the option altogether. It is to be noted HMRC’s policy is open only to those whose roles are suitable and does not equate to a contractual entitlement. This is eminently sensible. It affords HMRC the opportunity to vary permissions without creating major legal headaches (changing contractual terms of employment is more difficult).
Can an employer limit a working from home policy if performance is affected, particularly where working life appears to have been permanently changed in the advent of the Covid pandemic?
In practice, an employer can – within broad bands of reasonableness – do whatever it pleases. The real question is what are the consequences of taking that step?
The answer will ultimately depend on a number of different factors. If an employer has prepared its flexible working policy with due care and made it clear (and consistently published the fact) that employees do not have a permanent contractual entitlement to work remotely, whilst reserving always the right to withdraw the benefit, then an employer should – in most cases – be in a position to safely remove or reduce the ability for employees to work flexibly.
However, employers should proceed with a degree of caution and assess each individual situation on its particular merits; there may be legitimate reasons why an employee may struggle to return to office working, for example, due to disability or caring arrangements.
What rights does an employee have if they do not want to return to the office full time as per their contract?
Employee rights are determined by contract and statute. If an employee is contracted to work full time in the employer’s office, it is reasonable and legitimate for the employer to expect the employee to comply with that requirement – unless the contract has been varied, either expressly or through custom and practice.
An employee who is required to return to office working and does not wish to, could simply resign by giving notice of termination. Alternatively, an employee may seek to argue that any contractual obligation to work at the employer’s premises has been varied by the practice of having worked flexibly over a period of time. However, these arguments are tricky where an employer has taken care
over the drafting of its policies and made it plain that flexible working is a discretionary benefit, not a perpetual entitlement.
Of course, individual circumstances may give rise to different considerations. If there is a reason (other than general apathy at the prospect of interacting with colleagues) an individual may benefit from taking legal advice on their position.
