With flexible working on the rise, arrangements such as staggered hours can offer both the employer and employee advantages.
We look at what is meant by staggered hours and the key legal and HR considerations for employers adopting this approach, either on a temporary or permanent basis.
What are staggered hours?
There are various different ways of working flexibly, including working from home, job sharing, and working reduced or compressed hours. Flexible working arrangements can also include having different start and finish times to other workers. This is known as staggered hours, or working staggered shifts.
Staggered hours are defined by the Government as when ‘an employee has different start, finish and break times from other workers.’ This simply means that employees will start and finish work in the same workplace, completing a set number of hours, but at different times during the day.
How do staggered hours systems work?
To stagger work hours means to put in place a system where employees or groups of employees will start and finish work at slightly different times. This system may allow workers some discretion, within prescribed limits, in fixing these times, although once fixed these times should remain unchanged.
Under a staggered hours system, employees or groups of employees will start and finish work at slightly different times, creating a set variation from the traditional 9 to 5, or 8.30am to 5.30pm, working day.
The system may allow workers some discretion, within prescribed limits, in fixing these times, subject to the expectation that an employee’s daily responsibilities can be successfully completed within a single 8-hour day. Further, once their hours have been fixed, these should remain unchanged.
This is in contrast to flexitime where the employee is given core working hours during which time they are required to work, for example, 10am to 4pm, but they are granted some flexibility, typically a 2-hour window as to when they can start or finish work, such as 7am to 10am start time and 4pm to 7pm end time.
How can a staggered hours system be implemented?
It is open to both you and your staff to agree to various different types of flexible working arrangements, including staggered hours. You can vary the terms and conditions of a contract of employment, including start and finish times, in circumstances where either the employee agrees to the change or the employee’s representatives agree to the change, for example, a trade union.
In some cases, the employment contract may contain a flexibility clause allowing you to make certain unilateral changes, including to working times. However, you must be reasonable in making any changes and not discriminate against certain individuals or groups of individuals. It is therefore always more sensible to negotiate an employee’s agreement, rather than forcing different times.
Where you are looking to implement a system of staggered hours, you should clearly communicate your proposals and your reasons for this to employees – in this case health and safety concerns arising from the coronavirus crisis – as well as the likely period of the changes and the benefits to the workforce.
As a matter of best practice, you should be open to listening to staff feedback and discussing any individual concerns. You should also regularly review the situation and how the use of staggered hours is working in practice, providing ongoing support for your staff following the change to their working times.
Does an employee have the right to work staggered hours?
Where your business is not looking to introduce a system of staggered hours for your workforce, any employee who has accrued at least 26 weeks’ continuous service still has the right to make a statutory request to start and finish work at different times, or any other form of flexible working that may suit their needs.
Even though an employee does not have the automatic right to work staggered hours, you should consider any such request in a reasonable manner and only refuse this type of arrangement if there is a good business reason for so doing. Reasons for refusing staggered shifts could include:
- Any extra costs that will damage the business
- The work cannot be reorganised amongst other staff during busy times
- Other people cannot be recruited to do the work during busy times
- This type of flexible working will affect quality and performance
- The business will not be able to meet customer demand
- There is a lack of work to do during the proposed working times
- The business is planning changes to the workforce.
How should a request for staggered hours be handled?
When considering a statutory request from an employee to work staggered hours, much will depend on the economic and operational needs of your business, where there is no standard formula for any approval or refusal.
This means, that as part of the flexible working request process, you should carefully assess the advantages and disadvantages of the proposed arrangement, taking into account any adverse effects on your business.
Where there are potential barriers to allowing this type of working arrangement, you should hold a meeting to discuss the request directly with the employee and offer an appeals process where the decision is not made in their favour.
What are the consequences of refusing a staggered hours request?
If you ignore, mishandle or unreasonably refuse a request for staggered hours, you may find yourself facing a complaint before the employment tribunal. This could result in an order for you to reconsider your decision, as well as an award of damages being made against you of up to eight weeks’ pay.
Moreover, you may even find that any refusal to consider flexible working arrangements in the context of the current health pandemic, may lead to forced resignations and even claims for constructive dismissal.
It is easily foreseeable how an employee who feels at heightened risk of severe illness or has concerns about exposing vulnerable individuals in their household to the virus would want to use staggered hours to minimise social contact with work colleagues or to avoid a commute to work during peak times.
What do employers need to be aware of when allowing staggered hours?
Prior to the coronavirus outbreak, staggered hours had generally been common within the retail and hospitality industries, to make staff available to cover long opening hours for shops, bars and similar businesses.
Given the government guidance on using staggered hours to minimise social contact and to avoid busy commuter times, this type of flexible working arrangement is now likely to become more prevalent across all industry sectors.
That said, there are various considerations for employers when adopting staggered hours, where a certain degree of control is needed depending on the policies of your company or organisation, including your security systems, clocking in hours and reporting procedures.
In particular, it is important to identify any practical limitations that may require employees to compromise on their preferred working schedule, for example, security issues or access to information outside of core hours. It is also important to identify any potential impact of employees working staggered hours on co-workers and management, as well as solutions to overcome these hurdles.
This type of working arrangement can also often result in additional pressure and administrative demand on management to maintain a more complex matrix of which workers are working at which times.
As for the individual employee working different times, their statutory and contractual rights should typically remain the same. They will generally be undertaking the same work over the same number of hours, so this should not affect their employment rights and entitlements. That said, you must not overlook the rules governing working hours and rest breaks when making any changes to an employee’s start and finish times, even if only temporarily.
What should be included in any staggered hours checklist?
When considering staggered hours as a form of flexible working, you should identify the employee’s individual needs and factor these into your decision-making process. This means consideration must be given to the following issues:
- What are the reasons for requesting staggered hours?
- What is the proposed staggered hours schedule?
- What is the requested duration, and is this temporary or permanent?
- What existing criteria does your company or organisation have in place for permitting staggered hours?
- Does the employee fulfil these criteria, for example, length of service, performance ranking, job role, etc
- Having regard to the individual circumstances of the employee, for example, where either they, or someone in their household, is classed as clinically vulnerable, should these criteria be disregarded?
You will of course also need to consider the needs of your business, where the following issues should be taken into account:
- Can the job be done effectively within the proposed schedule, for example, the employee’s ability to get the job done outside any core hours?
- Does the employee demonstrate the necessary skills, ability and experience to do the job under the proposed staggered hours?
- What operational issues would the proposed schedule present to customers, co-workers and managers, and can these issues be overcome?
- What criteria will be used to monitor and measure performance, where managers should evaluate all staff based on similar standards?
- What review processes will be used to evaluate the arrangement?
Thirdly, regard should be had to the administration and logistics of allowing staggered hours, including:
- Does your company and organisation have a system to track employees working under a staggered hours system?
- Are there any security concerns in respect of access to or use of proprietary information and documents outside core working hours, and can these issues be overcome?
- Are there any security or safety concerns in respect of access to or use of the workplace premises or equipment outside core working hours, and can these issues be overcome?
- Has a cost-benefit analysis been carried out and what is the outcome of this analysis?
How can staggered hours be used to ensure a safe return to work?
Employers are emerging from Out of the lockdown, employers are expected to adopt flexible working patterns more widely. Where working from home is not feasible, employers must still be prepared to consider alternative forms of flexible working arrangements to safeguard staff during the ongoing health pandemic, including the use of staggered hours.
The implementation of different start and finish times for employees will be especially useful for easing congestion on public transport and traffic during peak hours. This will also minimise the problem of large groups of people arriving and leaving the workplace at the beginning and end of the day. In addition, staggering employees’ lunch breaks can help prevent large groups from gathering in rest areas or in queues at local shops or lunch providers.
You will need to conduct a COVID-19 risk assessment in consultation with your employees or trade unions, sharing the results of this assessment with the workforce and encouraging an exchange of ideas as to how health and safety within the workplace can be managed moving forward. Specific guidance here may need to be followed depending on your industry sector.
Legal disclaimer
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.
Author
Anne Morris is the founder and Managing Director of DavidsonMorris. A highly experienced lawyer, she is recognised by Chambers & Partners and the Legal 500 UK as a trusted adviser to multinationals, large corporates and SMEs, delivering strategic immigration and global mobility advice. Anne is also an active commentator on UK immigration and HR matters.
