Agile Working
Cutting agency/
contract
Staff
Cessation/reduction
of services
Recruitment
Freezes
Pay Restraint
Outsourcing
Generating Efficiencies: Maintaining
Effectiveness
Shared Services
Relocation of
Staff
Restructuring &
Redundancy
Flexible/Agile Working
• Top of the agenda
• Government Consultation on Modern Workplaces
• Olympics
• CIPD Report May 2012– 96% of employers offer flexible
working (most commonly part-time and home working)
Working Beyond Walls (Flexible Working In Government)
Report
• Work is “something we do not somewhere we go” (Sir Gus
O’Donnell)
• CAVE - Computer Animated Virtual Environment

Sound like the Jetsons at work!?
 Sound expensive!?
• But by 2020 home working will be a natural way of working
for most people.
The “Conventional” Approach
• Overly burdensome/a necessary evil
• Legalese-implications of refusing flexible working requests

Direct/indirect sex discrimination complaints
 Breach of Flexible Working Regulations
 Constructive dismissal complaints
Public Sector – Additional Considerations
• Necessity is the mother of invention
• Flexible working is being embraced by the public sector as
a potential driver of efficiency rather than a blocker.
Types of flexible working
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Part-time working
Compressed hours
Annualised hours
Job share
Term time working
Home working
Benefits of flexible working
• Reduced overhead costs
• Increased productivity
• Reduced absence
• Wider skill pool/retention
• Reduced impact of external interruptions
Drawbacks
• Reduced control/visibility
• Support/mentoring difficulties
• Over reliance on technology – business risk?
• Over-blurring of the lines between home and work –
increased stress?
• Disconnection/socialisation
Making the arrangements work effectively – the tricky bit!
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Contractual considerations
Data protection/information security
Arrangements on termination
Health and safety
BYOD – not to be confused with BYOB…
Avoiding discrimination/less favourable treatment
allegations
Contractual considerations
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Hours of work - establish the boundaries
Absence - holidays and illness reporting
Place of work - flexibility works both ways
Salary and benefits - avoid less favourable treatment
Expenses - specify who is responsible for what
Right to enter - employer may need access
Discipline and grievance
Data Protection & Information Security
• Requirement to take appropriate technical and
organisational measures against unauthorised processing,
accidental loss or damage to personal data.
• Processing includes obtaining, recording, or holding
information or carrying out any set of instructions on it –
very wide.
• Definition of personal data also wide.
• ICO has the power to impose fines of up to £500,000 per
incident.
Some cautionary tales
• Unencrypted laptops
Hounslow Council – fined £70,000
 Ealing Council – fined £80,000

• Inadequate IT security on website

Andrew Crossley/ACS Law – fined £1,000
• Theft of sensitive papers in a pub

Croydon Council – fined £100,000
• Sensitive papers dropped in the street

Lancashire Constabulary – fined £70,000
• Theft of memory stick from employee’s home

Greater Manchester Police – fined £150,000
Effective Data Protection Measures
• Specific training
• Conduct risk assessment in line with ICO’s Statutory
Guidance
• Specify who accesses computer and personal data stored
on it
• Home Security – is employee’s home left unattended for
regular periods?
• Use of passwords and encryption – sharing
forbidden/instructed to change regularly?
• Storage and security of paper files
• Transporting information between home and office
• Rules on retention and disposal of information
Obligations on termination/confidentiality
• The implied duty is more difficult to police where
employees work from home.
• Insert a specific confidentiality clause in a home worker’s
contract

clearly set out what information is confidential and how it
requires to be secured.
 importance of the right to enter and obligation to return
information on termination of employment.
Health & Safety considerations
• Employer’s basic obligation – take care of employees’ welfare and
health and safety “so far as is reasonably practicable”
• In the context of home working consider –
 Stress – work/life boundary and isolation/socialisation issues.
 Equipment – suitable, maintained and inspected regularly
 Electricity at work – Electricity at Work Regulations 1989 – who
knew?
 First Aid – responsibility to supply appropriate provisions
 Accidents – establish proper procedure for reporting of accidents
Use of equipment
• Home workers and peripatetic workers increasingly
allowed to use own equipment
• It even has its own term (BYOD) and its own ACAS Code
of Practice
• Making BYOD work effectively
Security
 Ensure right of access either physically or remotely to wipe
data (restrict liability for loss of personal information).
 If contributing to cost, require repayment if employee leaves
 Clear misuse policies and instructions all the more important
Flexible working will not be effective if it leads to discrimination/
less favourable treatment allegations
• Part-time Workers (Prevention of Less Favourable
Treatment) Regulations 2000

Unlawful to treat part-timers less favourably unless this can
be objectively justified
 Pro-rata principle will generally be applied unless this can be
shown to be inappropriate
• Sex discrimination - less favourable treatment of flexible
workers will often amount to indirect sex discrimination

Audit levels of pay and benefits, access to training and
promotion and employment opportunities for flexible workers
as compared to office based workers
What’s in a name?
• Unilever – “agile working”
• Siemens – “location independents”
• Plantronics – “smarter working”
• O2 – “desk huggers” or “desk hoppers”
• Competition time…..
Redundancy
 Redundancies still on the agenda for 2012/2013
 Public sector tradition of VS and VER
 Increase in compulsory redundancy in public sector

VS schemes have not achieved required efficiencies
 Those prepared to leave on VS have already left
 Labour market tight – reluctance to volunteer
 Public sector line managers less equipped to address
“survivor syndrome”?
 Levels of morale low due to relentless cuts.
Generating Efficiency: Sustaining
Effectiveness
 2 key issues
 (1) Legal process
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Identifying redundancy situation
Selection criteria; identifying appropriate pools
Alternative employment/trial periods
Consultation
Importance of getting it right – financial and reputational risk
 (2) Employee engagement challenge
Legal Process – Some Hot Spot Issues
 Employees on maternity leave
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Consultation
 Special protection
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Sickness absence/disability
Volunteers
Discrimination and grievances
Fixed term contracts
Secondees
Maternity leave - consultation
 Basic rule - don’t forget about employees on maternity
leave!
 Communicate with employees on maternity leave and
consult if possible
 Let them know about suitable alternative vacancies
 Pregnant employees (not on maternity leave at the time
when the redundancy dismissal takes effect) should be
treated the same as any other employee
Maternity Leave – Special Protection
 Regulation 10 MPL Regs. – right to be offered suitable
alternative. Controversial – appears to create preferential
right for those on maternity leave
Applies to those on leave at the time of redundancy
Two scenarios:
diminished headcount – maternity leaver is not ‘protected’ in
selection
 role re-design – maternity leaver has preferential right to
alternatives that are created in the new structure.
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Sickness Absence/Disability
 Basic rule - don’t forget about those who are absent for
medical reasons
 Disabled employees – no right to a vacancy but
reasonable adjustments must be considered to ensure
that competition for vacancies is on a level playing field.

additional designated support
 adjustment of the selection process required?
 Employee absent during process due to ill health –
obtain medical input
Discrimination and Grievances
 Outstanding unconnected grievance
 Grievance can be dealt with or parked until after the redundancy
process has concluded - weigh the risk
 New complaint not connected to the process
 Complaints about historic bullying etc. by people not involved in
the process can be dealt with separately or parked until the
process has completed - acknowledge complaint and
communicate proposals to deal with it
 Complaint about the process/scoring
 Complaints about the process itself need careful handling and
may have to be connected to the consultation/appeal process
Fixed Term Contracts
 Termination of fixed term contracts and collective consultation
 Is termination due to redundancy or for a reason relating to the
individual employee?
 Non-renewal of fixed term contract is a dismissal
 Do fixed term employees need to be included in the selection pool?
 If the job was going to finish anyway, regardless of wider job
reductions, fixed term employees need not be included in the
pool
 If the contract is not being renewed because of a wider job
reduction programme, they should be included in the pool
Secondees
 Consider at outset what the ‘status’ of the seconded role
is:

are they now more or less permanent?
is it clear that they will be returning to their original base?
 If they are more or less permanent in their seconded role,
they may be able to be considered within the seconded
area
 If original role still exists, is this alternative employment?
Addressing Morale/Survivor Syndrome
 Effective management of redundancy more than a legal
issue
 Redundancy = change = emotional response
 Tools to address the emotional response

Communication
 Empowerment
 Management influence
 Tools can be used in legal consultation to improve morale
throughout the process and beyond
Consultation
 Remember legal obligations
 Collective - currently
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20 – 99 in a 90 day period = 30 day consultation period
Greater than 100 = 90 day consultation period
Individual
 Consult on
 Reasons for proposal; timescales, pools, selection criteria, basis
for selection, redundancy package, alternative roles, support
available…
 How do you make it “fair”?
 Formative stage
 Adequate info: adequate time
 Conscientious consideration of employee’s/reps’ response
ACCEPTANCE
DENIAL
SHOCK
Personal Reaction to Change/Trauma
FEAR
ANGER
TESTING
BARGAINING
DEPRESSION
Stage of consultation
Emotional response
Some management
responses
Announcement/initial
meetings
Shock/denial
Communicate as much
information about process
as possible
In between initial
consultation meetings
Anger/Fear
Be available; open
honest, willing to help
Selection, moving into
individual consultation
Bargaining
Listen; be open; nonjudgemental, coach
Selection and looking for
alternatives
Depression
Be sensitive, offer support
and assistance
Termination/Continued
employment
Testing/Acceptance
Awareness of support
offered, removal of tasks,
team building mode