Fear of missing out?For a start, the fact that certain staff are working outside the ‘9 to 5 core’ does not necessarily mean that everyone else is too. Working late or night hours has often meant that those workers do not have access to the same benefits as day staff: staff canteens or other facilities for example may close for the night. Training is another example. The fact that workers may be working through the night but trainers are only available during the day should not prevent an employee from accessing the same training as other staff. Perhaps training via videolink or online training is the way around this? A little thinking outside the box can often address these issues, rather than letting an employee’s development stagnate simply because they work the ‘wrong hours’. There are wider issues for management in managing disparate teams. The need to maintain team spirit and morale is a greater challenge where there is no overlap between team members. Collaborative working will also be more difficult to achieve and is an area where technology should be used to its best advantage. It should also be remembered that a change of working hours may also be a significant lifestyle change. Going to the pub after work and meeting with friends/family or pursuing favourite leisure activities may become harder, which can lead to resentful and demotivated staff. Can management do anything to assist, such as organising work social events at different times of day? Can you provide access to support services and HR during night hours? What about the health and safety implications?fThere are different rules and regulations which apply to night workers and these will have to be borne in mind. Young workers are prohibited from working nights, the length of night work may be restricted for others and there are specific health and safety obligations to be observed. Aside from the legal issues, there is growing evidence that the long term effect of night or variable shift working also has an effect on physical wellbeing, such as in a recent study from the Sleep Research Centre at the University of Surrey. Could this cause long term health issues for which employers could ultimately be liable? Employers should be aware of this and seek advice if necessary. There are also risks to staff in terms of unwanted attention that often occurs during the darker hours. Public facing services and business may encounter the post-pub or night club crowd, who may be abusive to the workforce – or over-friendly! Do you need to increase security measures and offer other sources of support to staff who work these hours? Would they benefit from additional training in how to deal with these situations?
Filling the gaps? Using temporary and casual workers to plug the gap in coverage outside of core hours only does so short-term. Aside from some of the legal issues that can arise from this (such as employment status), there is a more human difficulty in that it further widens the gap between one set of workers and another set who effectively become a sort of employment “underclass”. This approach is unlikely to lead to a stable and well-motivated workforce long term.
Changing staff contractsThe alternative is to renegotiate changes to working hours with the existing workforce. It is often the case that there will be a number of staff who are happy to change their hours. What of those who are less flexible? Have the discussion with them as to why they are refusing. Not all staff resisting change are being belligerent; they may have good reason. A wholesale forced change to terms and conditions can lead to complicated grievances, as well as Employment Tribunal claims, for issues such as constructive dismissal, breach of statutory rights or even discrimination. Failing to take into account childcare issues can lead to potential sex discrimination claims and grievances. There are other considerations too, such as the need to accommodate differing religious observances for the faithful practitioners across the workforce. A change to large numbers of contracts of employment is rarely something that can be forced through without staff consent. Perhaps worse than enduring the wrath of the employee is to endure the wrath of a Trade Union (or a ‘staff council’) particularly where collective bargaining is required! Good negotiation will, for the most part, leave the employer, employee and Trade Union in a position with which everyone can work.
Working 9 to 5 is not the only way to make a living! Hilary O’Connor is a partner and Jeremy Consitt a lawyer in the employment practice at King & Wood Mallesons in London.
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