This article is written by Yash Kapadia. This article provides a detailed overview of the concept of flexible working and its journey ahead in India and other countries.
Table of Contents
The world was hit by the deadly coronavirus (COVID-19) and most countries adopted nationwide lockdowns from March-April 2020 for months which are still in force in a few countries today due to the rising number of COVID-19 cases due to the delta variant.
Amidst such an unprecedented scenario in the history of mankind, humans still found their way out to work. The words “work from home” became the most common word used by professionals in the service sector. In order for a pandemic to not stop the work of millions of professionals worldwide, companies and firms started to adopt the work-from-home culture where all that is needed is a good running internet connection.
Whilst working from home for several months now and the decline in the number of COVID-19 cases, various companies, firms and other organisations around the world have started to adopt a new form of work culture called ‘Flexible Working.’
Through this article, we shall discuss the meaning, advantages and disadvantages, countries who have adopted this style of working and what stage is India at concerning this transition of work culture.
Meaning of flexible working
Flexible working describes a type of working arrangement that gives a degree of flexibility on how long, where, when and at what times employees work.1
There are various modes of flexible working and some of them are:
One is said to work part-time when employees of an organisation are contracted to work for a particular number of hours which is less than full-time working hours.
It is a type of part-time job wherein a full-time role is divided amongst two or more individuals and responsibilities are shared between each of them.
This type of work is where the employee has been given the freedom in his contract to start and end working hours suitable to him. This type is a more result-oriented approach rather than the typical 9-5 working hours.
Various companies and firms have started a policy of letting their employees work remotely on a permanent basis. This basically means that there are no geographical boundaries from where one can do his/ her work until there is a running internet connection through which the work assigned is completed. Remote work is one of the most widely adopted modes of flexible working currently.
This type of work involves fewer days with significantly long working hours rather than working full time spread across the entire week.
The total number of hours that an employee will be working is pre-decided whereas the number of hours an employee works per week is variable and that may be at the employer’s discretion which week would require more work hours.
This list is not exhaustive and there may be more flexible approaches organisations may have put to use by making various clauses in the employment contracts or the employee handbook or even so with respect to the organisation’s working policy.
Flexible working can lead to benefitting the employer as well as the employee. Flexible working comes with a bunch of direct and indirect benefits for businesses.
When we speak of direct benefits, the expenses of commercial leases that come with physical offices are eliminated. With respect to indirect benefits, there can be an exponential increase in job satisfaction. Time consumed for commuting can be used for the completion of work and deadlines. Employees end up increasing their savings leading to building more wealth or a better quality of life as a whole. Parents too prefer working remotely so they can eliminate childcare costs in western countries.
In fact, 74% of professionals expect to make remote work a standard regime, 97% of employees do not want to return to the office to work full-time like pre-pandemic times. Furthermore, large tech giant corporations like Twitter and Slack already announced in 2020 that they would be giving all their employees the option to work from home permanently and Salesforce too announced their plan for hybrid work. In a survey conducted by Airtasker, an average of 37 minutes each workday, outside of lunch and standard breaks, where no work was done was reported when workers used to work physically. Remote employees only lost 27 minutes a day to other distractions.2
According to the Chartered Institute of Personnel Development, flexible workers are reported to enjoy significantly higher job satisfaction than those who do not work flexibly.
There is always a downside if we make the effort to ascertain the same. The following are some disadvantages a worker/ business owner may face but would realize only in due course after a passage of time:
Lack of social interaction
It is universally known that your network is your net worth. Whilst staying in the four corners of your home, one misses out on socially interacting with colleagues which too is a healthy environment to work in. Social skills lead to better growth and even better communication and networking skills which are some of the most important interpersonal skills any individual must possess.
Distractions in the house
A house is not an office. There are family members who are busy with the daily chores, children who must be given timely attention by parents if they are working from home which leads to disruption in one’s concentration to work effectively for a longer period.
Difficult to establish a culture
For business owners and executives of the top brass like CEOs who run organisations, it is difficult to establish a culture to be followed when there is no physical interaction with employees. It is exceedingly difficult for them to showcase what values the organisation promotes for better growth.
Information Security problems could be more likely to occur when employees are working from home. There is an increased risk with laptops being taken home and the need for employees to access various servers remotely. Employers must put protocols in place in order to protect company data by installing encryption software and other remote-wipe apps. Daily backups must be taken or important files must be encrypted which may not be too comfortable for people who are technologically backward.
Considering the backdrop of working remotely, some companies Microsoft, Infosys, Ford Company are looking forward to adopting the hybrid work culture so the employees have a balance of working from home and are open to coming to offices as and when required.3
Flexible working in India
As a new trend, work from home is bringing to life more telecommuting models, India’s Labour laws and proposed Labour Codes stay tight-lipped on the subject. These legal legislations do not recognize work from home as a viable work category. There have been some recent developments under Labour Codes under which an attempt has been made to endorse work from home and its definitions. Some of those codes are as follows:
Draft Model Standing Orders for Service Sector, 2020 (“DMSO”)
Pursuant to Section 294 of the Industrial Relations Code, 2020 the Central Government published a Draft Model Standing Orders for the Manufacturing Sector, Mining Sector and Service Sector. This DMSO is set to be applicable to an employer who has employed more than 300 workers. This Draft model permits an employer to allow employees to work from home on the basis of conditions agreed between both of them. However, even DMSO does not seem to possess enforcement abilities as this model fails to define the words “work from home” and the underlying interpretations, rules and regulations for it. In addition, DMSO might cause certain implementation problems when it would be needed to coincide with various different state laws that have enacted different labour codes.
Code on Social Security, 2020 (“CSS”)
CSS under Section 1(36) states that “home-based worker” means “a person engaged in, the production of goods or services for an employer in his home or other premises of his choice other than the workplace of the employer, for remuneration, irrespective of whether or not the employer provides the equipment, materials or other inputs”. In addition, CSS does not include the definition of work from home and therefore, it is the need of the hour to define such international concepts such as “remote work”, “telework”, “work from home” and “information and communications technology” (“ICT”) even so when many organisations in India are currently working in a remote capacity.
As per the International Labour Organisation (“ILO”), “telework” is defined with two operational definitions. Firstly, “The work is fully or partly carried out at an alternative location other than the default place of work”. Secondly, “The use of personal electronic devices such as a computer, tablet or telephone (mobile or landline) to perform the work”.5 It is regarded as a subcategory of “remote work”, even when both of these are to be carried out outside the default workplace. Furthermore, “work from home”, while being independent of the default workplace, may overlap with “home-based work” defined under CSS, wherein work is carried out at the worker’s home.6
Under the CSS, the concept of a wage worker has included home-based workers i.e. both being sub-categories of an unorganized worker under CSS.7 Such duplication of definitions is not desirable, especially since different social security schemes are available under CSS, depending on the particular category.
Occupational Safety, Health and Working Conditions Code, 2020 (“OSH Code”)
Earlier, the organizations were obligated to maintain registers under different labour codes in prescribed forms, however, it was silent with regard to the mode of maintenance of registers and organizations used to maintain such registers in physical forms, however, the OSH Code explicitly permits the organizations to maintain the said registers in electronic form.
It’s important to broaden the definition of establishment. OSH Code defines establishment under Section 2(1)(e) as “a place where any industry, trade, business, manufacturing or occupation is carried on in which ten or more workers are employed or motor transport undertaking, newspaper establishment, audio-video production, building and other construction work or plantation, in which ten or more workers are employed or factory, for the purpose of Chapter II, in which ten or more workers are employed, notwithstanding the threshold of workers provided in clause (w) or a mine or port or vicinity of port where dock work is carried out”.8
With work from home becoming the new standard of work, the interpretation of establishment needs to have a broader scope in order to accommodate the occupational safety and health of workers who work from home.
This issue must draw the undivided attention of policymakers in India because the newly enacted Labour Codes and the draft Model Standing Orders do not address flexible working clearly in their entirety. CSS allows women availing maternity benefits, the right to work from home on certain conditions. The draft Model Standing Orders provides a choice of work from home and flexible working hours for only employees of the IT sector.
Countries that have adopted laws with respect to flexible work
There are countries that have adopted laws relating to flexible working conditions way before the COVID-19 pandemic struck all of us and some have been open to adopting fresh laws for flexible working conditions in place in the post-pandemic era. The following are few countries that have adopted/adopting flexible working conditions by passing relevant legislations:
Yes, this Nordic nation has had policies in place for flexible working hours opportunities for quite some time. This is an outcome of the enactment of its Working Hours Act, 1996. More particularly, Section 13 gives us an overview of flexible working hours. The recently amended Working Time Act, 2019 introduced laws towards creating flexible working arrangements on flexible work hours, flexible working arrangements with further interpretation of ‘working time accounts’. The Act has several other introductions of varied forms of flexibility. Employers and employees may agree to flexible working hour arrangements, subject to regular working time which shall however not exceed 40 hours and further adjustment of excess hours worked. The Act also lays down legislation for maximum working time, overtime remuneration and work done on Sundays, daily breaks and rest periods.
Flexible working hours in Finland is more of a right than a perk as compared to other countries. Therefore, a law that is two decades old and further laws to come in force that gives the majority of full-time employees the right to decide when and where they work for at least half of their working hours make Finland way ahead in this curve of work culture.
The right to request flexible working is set out in Part 8A and Section 47E of the Employment Rights Act, 1996, as amended, and associated regulations9. Since then successive governments have extended the right to wider categories of employees. On 30 June 2014, the right was extended to all employees by the Children and Families Act, 2014. The legislation today includes all employees with continuous employment of a minimum of 26 weeks, notwithstanding parental or caring responsibilities. It is the duty of an employer to consider a request in a reasonable manner and a request to flexibly work can only be refused if the employer can show that one of a specific number of grounds applies. Advisory, Conciliation and Arbitration Service (“Acas”) has issued guidance and a Code of Practice for employers on handling such requests in a reasonable manner. Similar procedures are applied when an employee needs to file requests for a flexible working hour with time off work in order to study or for training. The right to request flexible working doesn’t apply to a few categories of workers, for example, certain agency workers.10 Two-fifth of UK employers believe that the right to request flexible working legislation has been an effective catalyst in increasing the uptake of flexible working in their organisations.11
On 1st December 2018, a new ruling came out by the Fair Work Commission (FWC) that employees can make a request for flexible work (with regards to the hours, location and/or pattern of their work) and employers need to make a genuine attempt to reach an agreement with regards to the same. If the employers do not accept the request, they need to have a valid and a good reason to back-up their decision of refusal. According to the FWC website, non-casual workers can make a request if they have been employed for at least 12 months and they:
- “Are the parent, or have responsibility for the care, of a child who is school aged or younger;
- Are a carer (under the Carer Recognition Act, 2010);
- Have a disability;
- Are 55 or older;
- Are experiencing family or domestic violence; or
- Provide care or support to a member of their household or immediate family who requires care and support because of family or domestic violence.”
It is to be noted that even casual employees have the freedom to make a flexible working request if they have been working for an employer continuously for at least 12 months and there is a reasonable expectation of the work being continued with the employer.
Under Part 6AA of the Employment Relations Act, 2000, all employees have the right to make or have made on their behalf, requesting a variation of their workings at any time. Employers are obligated to respond to requests within a period of one month after receiving them. There are a scarce number of reasons for which employers can decline a request like an inability to recruit additional staff or to reorganise work. The demand for flexible work in New Zealand has been increasing and factors such as an increasing number of working parents and technological advancements mean that legal workplaces that accept and move along the flexible working curve will have an advantage in attracting new and retaining existing staff.
The new laws in Canada for federally regulated employees give the right to request flexible working after six months’ employment. Employers in federally regulated sectors in Canada like banks, transportation and communications sectors have had to comply with a new Canada Labour Code from September 2019 (amendments made post the pandemic). This provides rights for “breastfeeding breaks, scraps service requirements for maternity and parental leave, introduces leave for victims of family violence, paid bereavement leave, personal leave (up to five days each year, three of which will be paid, for illness, family responsibilities, etc) and up to five days’ leave each calendar year for an employee who is an Aboriginal person to engage in traditional Aboriginal practices including hunting, fishing and harvesting”12.
In Germany, there is a statutory right to work part-time for a period of one to five years which came into force in January 2019 which can be availed by all employees who meet qualifying requirements without a need to give reasons13. However, this has only been used to a very limited extent to date as employers tend to offer their own more flexible solutions or collectively agreed flexibility programs.
Spain has expanded its right to request flexible working arrangements to allow employees to make requests for working from home.
A number of countries outside Europe have strengthened their flexible working laws.
As part of its wide-ranging reforms to employment law, the Dubai International Financial Centre has specifically recognised the existence of part-time employment and provided for part-time employees to have leave entitlements on a pro-rata basis.
India currently does not have well-equipped legislations as well as interpretation of words like remote-work, flexible work, telework, etc in place as compared to other countries described in this article. However, with a model released this year, we can be certain that India does come up with amendments and new labour laws under its Employment Acts spread across a variety of sectors.
Countries that have laws in place can be portrayed as examples and statistical data can be referred to in order to see what is best for the development of a country. Considering the impact the pandemic has had around the world, the evolution of how people will work in the future has definitely changed and has already been put into practice in some countries.
The COVID-19 pandemic has led to a change in the way work is being and will be carried on in the employment sector and as a consequence thereof remote, virtual workplaces are being embraced. In January 2021, ILO released a report titled Working from home: From invisibility to decent work, detailing the growing concerns related to working from home.
This report draws our attention to the Government who must play a catalyst in protecting the work from home employees. This report has made firm suggestions of adopting people-friendly policies into the national legislation at the earliest opportunity. The eye-catching feature of this report is that it also suggests a gender-responsive legal framework with a goal to provide equal treatment to all categories of work from home workers. The report further recommends better compliance, legal protection, occupational safety and social security for industrial-based workers working from home. Most importantly it recommends the ‘right to disconnect’ to a teleworker to ensure that he/she is not over-utilized without paying and it also ensures that a boundary is maintained between work life and personal life.14
The outbreak of the COVID-19 global pandemic has brought about a long-lasting change in the dimensions of working environment and style. Technology has shown that one does not need to be physically present in the office all the time to reach goals or to get a particular work done. In such a scenario, it is the government that has to come up with updated rules, regulations, legislation and codes so that a country can nationally embrace the form of flexible working. Words such as remote work, work from home, work from anywhere, annual hours work, etc must be defined and their scope must be penned down exhaustively and crisply.
With India coming forward with a model, a well-established set of laws similar to other countries (described above) if put into force, it will change the dynamics of working forever. This will lead to a transition no one might have expected to come into force so soon in India. However, only time will tell what the future beholds in India in terms of a flexible working environment considered to be a legal option.
- Chapter IV- Standing Orders- Page 17of 56 https://egazette.nic.in/WriteReadData/2020/222118.pdf
- Page 6 of 14 https://www.ilo.org/wcmsp5/groups/public/—dgreports/—stat/documents/publication/wcms_747075.pdf
- Page 7 of 14 https://www.ilo.org/wcmsp5/groups/public/—dgreports/—stat/documents/publication/wcms_747075.pdf
- Section 2(1)(e) at Page 6 of 84 http://dgms.gov.in/writereaddata/UploadFile/Occupational%20Safety%20Health%20Code%20Act%202020%20as%20assented%20by%20the%20President%20of%20India637370849494550871.pdf
- The Flexible Working Regulations 2014 (SI 2014/1398)
- Page2: https://knowledge.leglobal.org/wp-content/uploads/sites/2/LEGlobal-Employment-Law-Overview_Germany_2019-2020.pdf
- Page 14 of 279 https://www.ilo.org/wcmsp5/groups/public/—ed_protect/—protrav/—travail/documents/publication/wcms_765806.pdf
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join: