Working from home: how to keep the wolf fed and the sheep healthy

While businesses have become much more flexible in organising their working time in recent years, driven by the pandemic, there is no single consensus on where, how, and when to work. HR professionals, managers, and employees have been arguing for almost a year about whether professionals working from home are more efficient, or whether they lounge on the sofa during work hours, writes Eglė Gliaudelytė, an associated lawyer at the law firm Cobalt

While businesses have become much more flexible in organising their working time in recent years, driven by the pandemic, there is no single consensus on where, how, and when to work.<br>123rf iliustr.
While businesses have become much more flexible in organising their working time in recent years, driven by the pandemic, there is no single consensus on where, how, and when to work.<br>123rf iliustr.
Eglė Gliaudelytė, an associated lawyer at the law firm Cobalt..
Eglė Gliaudelytė, an associated lawyer at the law firm Cobalt..
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Eglė Gliaudelytė, an associated lawyer at the law firm Cobalt

May 30, 2022, 11:25 AM, atnaujinta May 30, 2022, 11:26 AM

Advocates of flexible work say that such working time arrangements can increase productivity and motivation. Perhaps the most commonly cited efficiency argument is that working from home saves around two hours, which in Vilnius is usually needed to get from the residential areas or suburbs to the office and back. In addition, employees feel more valued if they can fit their working hours around their family life and work when they are most productive.

Progressive companies fully fund the installation of home workspaces for professionals, pay for the electricity used by professionals during work, and even buy coffee and lunch.

Meanwhile, opponents of teleworking believe that unsupervised home-based workers waste time and they should therefore take a pay cut. A recent debate in the UK media was sparked by a London law firm’s proposal for a 20% pay cut for employees who want to work from home.

What work time arrangements to choose?

Personally, I agree with those who say that more flexible working arrangements are attractive, both in terms of retaining existing professionals and attracting new ones. However, it is important to apply this working pattern properly. In practice, there is a paradox: the more freely we choose to organise our working time, the more detailed it must be. Otherwise, there is a risk of unpaid overtime, abuse, overwork, and ultimately labour disputes.

Working time arrangements are the distribution of working time over a given period of time – a working day, week, or month. The Labour Code sets out five different working time regimes. In addition to the usual fixed working time regime of the same number of hours and days per week, alternative regimes, or a combination of several at the same time, are increasingly being used in practice.

Individual working time arrangements are among the most flexible. It can be tailored to the needs of each worker. In this case, professionals usually allocate their working time themselves, within the requirements of maximum working time and minimum rest time. However, this should not mean absolute freedom to work at any time of the day.

When negotiating these hours with the employer, it must be made clear when the person will work. This can be done by means of an individual timetable or by ensuring that the specialist will monitor their own working time. In the latter case, the employer must lay down the rules on working time.

Who needs this, you ask? Because there are already precedents. The European Court of Justice has clarified that, in the absence of a system for calculating daily working time, it is extremely difficult, if not impossible, to objectively and reliably determine the number and timing of a worker’s working hours and the amount of overtime.

There are ambiguities

In the absence of a clear procedure, there is a risk of ambiguity. For example, if a worker fails to answer calls or emails for a long period of time, is unavailable, or consumes alcoholic beverages, but it is not clear whether this has taken place during working hours, the employer will not be in a position to discipline him.

Another good example of ambiguity is when an employee chooses to work at night, at weekends, or on public holidays and demands to be paid at a higher rate for this time.

Painful lessons

Take how the Klaipėda District Court heard a case in which an employee, a journalist, who worked on Sundays as a sports reporter for a Monday daily newspaper, applied to the Labour Disputes Commission for an order to receive arrears from his employer for his work on rest days, which he had accrued over a period of nine years.

His employment contract provided for a working week of five working days and forty hours, the days and duration of work being determined in accordance with an approved work schedule.

The employer indicated that the professional in question was given the ability to organise his work independently by choosing when what, and how much content to produce in the sports reviews. According to him, journalists were not obliged to be in the editorial office all the time but could come and go at any time convenient to them. However, none of the creative staff was instructed to work overtime or on days off.

The employer also argued that it was not in a position to control when the newspaper’s articles were produced: after working hours or during the scheduled working hours. This is a personal choice of the employee, and the employer is not obliged to control the working hours of the off-hour’s specialists. The court was critical of the employer’s arguments and found that the employer had failed to fulfil its obligations. The court held that the employer had failed to monitor the compliance with the working time schedule, remedy the breaches of the working time requirements and change the employee’s working time and the working time schedule to reflect the reality of the situation. It must therefore bear the negative consequences of his failure to fulfil his obligations.

This case provides a valuable lesson in the need to review the proper regulation of employees’ working time, the clarity of the agreed working hours, the establishment of work schedules, and the monitoring of compliance with them. It should also be clarified when and which employees will be required to keep their own timesheets and in what order they will be kept.

I would suggest that these questions should be answered and included in the internal procedures or contracts of all companies that have agreed with their employees on more flexible working time arrangements.

Individual or flexible?

The other popular working time regime, besides individual working time, is flexible working time. The latter provides for a number of fixed hours during which work is compulsory, for example from 10 am to 4 pm. The employee chooses the start and end times. In other words, a professional must work the standard working time (8 hours) per day but may start and finish a few hours earlier or later.

Apart from the obvious, the attraction of this type of working time is that all employees work at the same time for part of the day, which makes it easier to plan teamwork and meetings.

It also makes it possible to avoid overtime. If an employee has a meeting or event scheduled that is likely to extend beyond the fixed working hours, the employee can start work later that day.

It is also possible to negotiate with the employer that unworked non-fixed hours can be carried over to the next working day. Thus, on-demand, one day may be worked shorter and the next longer, making up for yesterday’s hours.

However, this regime can also be set up for a few working days per week instead of all of them, e.g., only on Monday/Friday. In addition, this arrangement should be agreed upon or set out in the working time rules on how the employee will keep records of unrecorded hours and how he/she will be paid for work done during those hours.

In summary, individual working time arrangements are mainly for persons in managerial positions or professionals who work remotely and have certain additional responsibilities.

Flexible arrangements are suitable for activities where a significant amount of work is carried out individually, but where it is also desirable to define the hours during which all employees will be available.

How to maintain the boundary between work and rest time?

Working irregular hours blurs the boundary between work and rest time and has led to a growing number of complaints from workers about excessive fatigue. The increased use of communication tools has made employees available anytime, anywhere. There have been more interference in employees’ private lives. The question naturally arises of how to ensure that employees remain healthy and productive. Best practices can be introduced in the workplace in a variety of ways:

– Establishing principles and enforcing rules against working after hours, sending emails, and making phone calls during off-hours. However, if the latter is unavoidable, a response should be established.

– Deploy applications that automatically disconnect employees from systems used for work after hours or from communication platforms.

– Use features that delay the sending of an email or offer to consider the necessity of sending and set a delay on a per email basis to ensure that it reaches the recipient’s email inbox during working hours.

– Implement a culture where employees are not required or expected to work on their days off, to respond promptly to emails and calls.

– Set aside days or hours without interruptions so that employees can concentrate and do quality work without calls and meetings. This way, the employee will catch up with deadlines and the work will not be delayed beyond working hours. Or, conversely, concentrate on calls and meetings on a few days a week and use the rest of the time to concentrate on more demanding work.

– Give employees a day every month, or at least every few months, to disconnect and rest.

– Talk openly and listen to employees’ needs. When intensive work is unavoidable, it is encouraged to take the time to find out how each employee is feeling and to look for individual solutions to ease their daily routine (e.g., redistribution of workload, a day off).

– Set an example. When employees in leadership positions follow specific rules on the boundaries between work and rest, it is likely that employees who follow the leader’s example will adopt the same attitude.

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