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Are contractors obliged to be office-bound or can they negotiate remote working?

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SPECIAL REPORT: UK law states that employees can only request to work flexibly after 26 weeks of employment, with a limit of one request per 12-months. However, what about independent contractors or those that go through an agency? Two highly experienced IT contractors turned business founders provide their insights on how things could and in cases should develop for the future of work.

  • While COVID-19 has driven an increase in remote working, 46% of UK employees still do not have flexible working in their current role, finds CIPD research. 
  • The HR body reported that included remote working, flexi-time, job shares, compressed hours, part-time working or other flexible working arrangements.
  • Those without access to flexible working are around twice as likely to be dissatisfied in their job, compared to those who do.

No two contractors are alike. Some will appreciate the collaborative environment of an office or just not mixing work with home life. Others will find the flexibility of remote working crucial to remain employable in their specialist field and work around school hours. Regardless of preference though it would seem that most hiring companies still call the shots.

For example, at the height of the first pandemic lockdown in April 2020, 135,000 temps and contractors that were working at Google offices but were employed by 3rd parties, were not permitted to work from home. That’s because Google has a policy that prevents most contractors from logging on and accessing their work remotely.

By the nature of their work, some contractors — as well as some Google employees like kitchen staff at offices — can’t work remotely, said a Business Insider report. That is why those that want the social interaction of a workplace environment but have reasons for not being office bound five days each week, work may want to ask for a hybrid model whereby they can combine certain aspects of their work from a remote or work-from-home model.

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“We live in a free society and I think that employers who mandate contractors to work from an office will lose out on great talent.”

Nick Woodward, Portfolio Contractor and Founder of ETZ

Disciplinary action and failing to return to the office

Employers with confidence in their COVID-secure measures who can show that staff can’t work effectively from home may insist that employees return to the workplace and theoretically can take disciplinary action if they fail to do so. However, as the government’s advice means that home working must continue at least until mid-July, the safest course of action remains to accommodate homeworking until definitive guidance is given.

For employees where home working is not possible, alternatives such as unpaid leave, the furlough scheme if applicable and further government schemes should at least be considered as options until the end of those schemes.

“I believe that contractors should have the freedom to choose where they perform their work provided they can perform their duties at their chosen place of work,” Nick Woodward, an IT contractor turned founder of recruitment platform company ETZ told The Freelance Informer.

“We live in a free society and I think that employers who mandate contractors to work from an office will lose out on great talent,” said Woodward.

Fellow IT contractor and founder of ContractorCalculator, Dave Chaplin, told the Freelance Informer that when it comes to contractors being obliged to be office-bound or having the right to negotiate remote or flexible working, “It’s not a case of having to have any ‘rights, because they already do. They are independent businesses, operating through their own companies. Negotiations are conducted before they agree to provide their services, and those negotiations could include remote working.”

But what should agency contractors expect when it comes to how recruiters stand on this point when negotiating terms on behalf of hiring companies and candidates?

According to Chaplin, recruiters will get a feel for the market, and where the best talent is. “If firms are finding it hard to source the best talent because of an office-only policy then recruiters may persuade them to revisit that policy,” he said.

Woodward has a pragmatic line of thinking when it comes to what contractors should expect of their recruiters. “Recruiters are mediators so they will do what’s in their best interests to get paid a commission, it’s likely they will side with the person paying the money i.e. the employer.”

What should contractors expect of hiring companies with commercial real estate at the core of their business?

Goldman Sachs to take space with WeWork in Birmingham
The full-floor at WeWork 55 Colmore Row will support its growing presence in the city
WeWork 55 Colmore Row in Birmingham B3 2AA. Photograph by WeWork.

As the pandemic winds down in many places around the globe, CEOs like Morgan Stanley’s James Gorman and WeWork’s Sandeep Mathrani are pushing for a return to the office. Contractors will have to consider the line of thinking of such companies and whether their investment in commercial real estate is driving their lack of enthusiasm for remote working. Also, the sacrifice they as contractors may have to take if they forego large city salaries.

“Let’s consider these two companies,” suggests Woodward. “WeWork is a major tenant so it would be in their interests that people return to offices and therefore increase demand for their services. Morgan Stanley, likewise, is either a major tenant or owner of commercial property or both. Of course, both these companies will push what’s best for them and that’s a return to their offices.”

James Gorman has expressed, for example, that if people want New York City salaries, then they have to come into the City to justify that pay rate. Similar lines of thinking are taking place at big tech companies, that have since altered pay grades based on location rather than skill or experience.  

Woodward, who can see both sides of the coin as a portfolio contractor and company founder, said, “I think as a free society employers can mandate conditions on employment, however, employees also are free to choose a better work-life balance by refusing to work in New York, for example. Ultimately, as long as employees are free to choose how they work then the market will decide the outcome based on everyone’s free choice.”

Chaplin said that whilst there may be a vested interest by firms who own commercial property in convincing everyone to return to the old way of working, what ultimately happens will be driven by the “supply/demand curve, and those who can work from home, and want to work from home, and are in high demand, are likely to get what they want.”

Chaplin said that rates may level out across regions for remote workers.

“Often the higher salaries are simply a function of the high cost of living in a capital. I’d expect to see different rates for remote and office-only,” he said.

Are millennials and Generation Zs shaking things up?

Many employees and contractors simply don’t want to go back into the office today, tomorrow, or ever, with 39% stating they would consider quitting their jobs rather than sacrifice flexibility. That number increases to over 49% for millennials and members of Generation Z, which account for more than half of all US workers, for example.

When we asked Chaplin if younger generations will now lose out on valuable office-based learning, colleague collaboration, even work friendships because of the remote working movement, he had this to say: “There will be requirements from employers and from employees as to what they want to do, but ultimately it is a negotiation, primarily driven by the supply/demand curve for the specific talent. Everyone can vote with their feet, but for many, that approach may backfire. No one is entitled to get exactly the working conditions they want. Life is a compromise.”

Woodward is optimistic that a happy medium will develop. “It’s likely that employers and employees will work out the right mix of office-based work and work from home ratio. I don’t think it’s either one or the other. We are all free to make choices that will produce the desired outcome which ultimately should be about increased productivity.”

“Often the higher salaries are simply a function of the high cost of living in a capital. I’d expect to see different rates for remote and office-only.”

Dave Chaplin, a former IT contractor and Founder of ContractorCalculator
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Can clinically vulnerable employees work remotely?

The government’s advice on shielding is currently paused in England. The government have said it anticipates that once CEV people have received their second dose, it will no longer be necessary to advise shielding but employers should still discuss with employees how they are feeling about a potential return to the workplace. The government is considering the long-term support that may be needed especially for those who cannot be vaccinated or do not receive a significant increase in immunity from the vaccine. Employers should check updates to government advice to keep CEV people safe, including separate advice for people who are CEV who live in Scotland, Wales or Northern Ireland.

How to put your flex or remote work argument forward

CIPD research has identified the benefits of flexible working arrangements for employers and employees: from improved wellbeing and work-life balance to greater productivity.

If you are a contractor and you want to request flexible working and you need some key points to back up your case here are some benefits of flexible working for employers and employees

  • According to Hays, two-thirds (63 per cent) of tech professionals expect to continue working remotely in some form or another; the same proportion said they expected to have more opportunities to work flexibly in future, compared to less than half of professionals across all sectors.
  • 43 per cent of tech workers say they think the ideal hybrid model is three days of working from home and two days in the office.
  • Six out of ten workers are willing to take a pay cut if they’re able to continue working from home, post-pandemic.

The CIPD has launched a pro-flexible working campaign called Flex From 1st campaign. It is encouraging employers to support flexible working for all and the right to request flexible working from day one of employment.

“We’re calling for a change to UK law to make flexible working requests a day-one right for all employees. At present, UK law states that employees can only request to work flexibly after 26 weeks of employment, with a limit of one request per 12-months. This needs to change.”

CIPD Flex From 1st campaign

NHS adopts flexible working model from September

Employers, such as the NHS are already coming on board to the campaign’s suggestions. The NHS will have a new enhanced day one contractual right to request flexible working. It will also have a revised structure that is aimed at supporting managers to be more explorative in reaching mutually workable outcomes. PLus a re-emphasis on the importance of monitoring flexible working requests at an organisational level, to ensure greater consistency of access to flexible working.

These changes to the NHS terms and conditions of service handbook will go live from 13 September 2021. In the meantime, employers are encouraged to start engaging with their local staff side to review and update local policies. 

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