Agile/flexible working is gaining momentum in Asia

In the past year, we have been getting increasing numbers of requests from clients to assist them with putting in place an agile/flexible working policy.

Agile/flexible working can mean a number of things, such as part time work, working fixed hours (where an employee will only work pre-agreed hours in the office), remote working (where an employee may work from home or from another location), job sharing (where a job is shared between two or more people), etc. The most common arrangements we see in Asia are part time work and working remotely.

Our observation is that agile/flexible working policies are still more prevalent in international companies and larger local corporates. That said, we are noticing that even companies which don't have a formal policy in place are beginning to consider ad hoc employee requests for flexible working.

Reasons for considering an agile/flexible working policy

There are good reasons for looking at the idea of agile/flexible working more closely.

The advancement of technology enable employees to work virtually anywhere with a laptop and an internet connection. In fact, we have seen countries like Japan and Philippines introduce legislation which provide a framework for “tele-work”, which where employees work remotely from home or another location. Aside from the flexibility for employees, governments are recognise the positive impact this may have on rush hour traffic!

The competition for talent in Asia is increasingly fierce and employers are recognising that the newer generation of workers tend to value work life balance and flexibility over pure remuneration. An agile/flexible working policy can help employers distinguish themselves from their competitors for talent.

Some employers are also concerned about whether a policy of not allowing flexible working could amount to indirect discrimination. If a policy has a disproportionate effect on a particular group of people with a protected attribute (for example, a female employee is more likely to have child care responsibilities) and the policy operates to their detriment, then there may be a claim for indirect discrimination. A smaller employer may be able to justify the refusal to allow flexible working based on limited resources, but this can be more difficult to do for large employers.

What to watch out for

There are a number of ‘pitfalls’ to be aware of when considering agile/flexible working, for example, there may issues with employees working from a home office from a health and safety perspective. In Hong Kong, for example, the Occupational Safety and Health Ordinance requires employers to (amongst other things) ensure as far as reasonably practicable the health and safety all employees at work. It is unclear how these requirements apply to employees who work from home and how the employer can fulfil its obligations with regards to home offices.

There is also no concept of part time work under the Hong Kong Employment Ordinance, although there is a ‘418’ requirement whereby employees who work four consecutive weeks with at least 18 hours each will be deemed to be under a continuous contract and are therefore entitled to the benefits/protection of the Employment Ordinance. Any arrangements with the employees will therefore need to be carefully agreed and documented to minimise future disputes.

As such, if you are increasingly getting ad hoc requests from employees for agile/flexible working, then putting in place a policy is a good idea. It will help ensure that requests are dealt with in a consistent way and decisions are made with reference to the same set of criteria/factors, which helps to reduce disputes.

A good agile/flexible working policy will cover things like eligibility (who is eligible to participate in the policy), how requests for agile/flexible working should be made, the factors which the company will consider in determining whether to grant a request, etc. We can help you put in place a policy which works for your business and give you guidance and best practice tips on things you can do to mitigate the relevant risks.