Avoiding flexible working's hidden pitfalls

employment_contract.jpgYou don’t have to look too far to see that traditional modes of employment are increasingly giving way to more flexible working arrangements.

Returnee mothers, for instance, can be found working school hours during term time. Retired former employees are spending two days a week in the office, working as part-time consultants. And specialists in particular areas of expertise can be found working part-time, or on fixed-term contracts, as contractors.

The overall numbers of people employed within these flexible working arrangements is still quite low, of course. But it’s definitely the case that more and more employers are encountering instances where one or more of their staff are working within such a framework.

Flexible working’s darker side

And to be blunt, this is probably the worst of all possible worlds.

On the one hand, there’s a significant likelihood that employers will encounter a flexible working arrangement. But on the other hand, with only a handful of staff working within such arrangements, employers are unlikely to have built up enough of a body of experience to manage the phenomenon appropriately.

And this, unfortunately, leaves both employers and the staff they use open to a certain level of risk.

Moreover, the risks involved aren’t just those that might be imagined—inadvertent breaches of employment and taxation law, for instance, or niggles over holiday entitlement.

Instead, ask those employers who have fallen foul of flexible working’s less welcome side, and you’ll hear about disputes over intellectual property rights, arguments over pay and bonuses, ill-defined employment durations and deliverables, and disputes over eligibility for home working.

Who are we talking about?

But before diving into the detail, let’s take a moment to make it clear what sort of flexible working arrangements we’re talking about.

We’re not, for instance, talking about people on regular ‘9-5' employment contracts, where personal circumstances perhaps dictate some short-term flexibility—illness, disability, or childcare issues, for instance.

Nor are we talking about situations where a decision has been taken to offer all existing employees flexible working arrangements, should such arrangements be mutually acceptable. (Although watch out for a forthcoming blog from us, on precisely that topic.)

Instead, we’re talking about those part-time contractors, returnee mothers, retired ‘consultants’ and—increasingly—potential employees taken on in a ‘try before you buy’ arrangement, as an alternative to a probationary period.

In each case, studies show that flexible working arrangements can improve productivity, increase morale, and make productive use of people whose skills would otherwise go to waste.

Clear expectations

That said, it is crucial that those flexible working arrangements are correctly framed from a contractual perspective—be that a formal Employment Contract or Consultancy Agreement.

What should such a document include? In our view, it’s important to lay out clear expectations in a number of important areas:

  • What role is the person to fulfil?
  • Is their payment based upon deliverables, or the number of hours spent working?
  • What are the termination provisions?
  • What is the position regarding holiday and sickness pay?
  • Is on-site working required, or can they work from home?
  • Can expenses be claimed, or are they included in the day rate?
  • Who owns any intellectual property that arises? (Importantly, this includes not just patents and trademarks, but also the copyright in any materials produced.)
  • Do you want to restrict the person from working for a competitor?
  • If the person is planning to use materials they have licensed from a third party, do you have the right to use them too?

Note, these are not theoretical points. In each case, we have encountered issues.

And in some cases—particularly relating to intellectual property  and payment provisions —those issues have been serious, giving rise to significant concerns or actual disputes.

Flexible working’s bottom line

So what to make of flexible working? As users of flexible staff ourselves, we have no doubt as to its value.

Employees and staff on flexible working arrangements are generally highly motivated, loyal, responsive, and very quickly get back to speed after a period away from the workplace.

They have skills that employers want to tap into, and—to the extent that flexible staff reduce recruitment requirements elsewhere in the business—reduce the levels of training required.

Even so, a prudent employer will recognize that it’s sensible to put protections in place, and proceed on a proper contractual footing.

To find out more, call Kirstie Penk on 020 3755 5099 at any time.

Posted Monday, November 9th, 2015 by Warren Ryland



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