This is a question our employment lawyers hear more and more since the lockdown restrictions have lifted, and requests for flexible working have risen. It is likely that the number of requests for home working will increase as the furlough scheme tapers out and then ends next month.
Many employers are unsure of what they can agree to and what they can refuse, which is not surprising given the various – and varying – reports in the press and from the government on this subject.
On August 9th 2021, the Business Secretary said flexible working was here to stay, but on the same day, there were press reports claiming the same government was threatening to reduce the pay of London-based civil servants who didn’t return to the office.
When considering a request to working from home, it is very easy for employers to slip up inadvertently, so it is always important to seek legal advice before doing anything.
Employee Rights and Employer Obligations
Here is a brief overview of the key rights and obligations in this area but please contact us if you have any questions or are unsure about managing this difficult area.
- An employee only has the right to request flexible working if they are eligible – that is, if they have 26 weeks service and haven’t made a request in the last 12 months.
- There is no automatic right for an employee to work from home (presuming the employment contract doesn’t already allow for it, of course).
- Employers must deal with requests in a reasonable manner which includes:
- Carrying out a balanced and fair assessment of the request – don’t just look for reasons why it won’t work;
- Discuss matters with the employee ;
- Offer an appeal against any decision to refuse the request; and
- Deal with the matter within three months.
There are only certain grounds on which a request can be refused including the burden of additional costs or that granting the request will have a detrimental impact on performance. Employers will need to be able to back up the reason(s) they rely upon.
What do employees want?
Many employees have enjoyed the work-life balance that working from has given them over the last 18 months, so they won’t want to return to the office, whereas many employers feel that team collaboration and internal relationships have suffered such that getting staff back in is crucial. Both perspectives are legitimate.
Like many things, balance and communication are key here.
How to gently approach returning to the office.
Explain to staff what the demands and needs of the business are and why you feel those needs can only be met with staff in the office. Remind staff about their personal development – training, networking, and learning on the job are much harder if people are not in the office.
Discuss the adjustments you have made to the office to ensure it is Covid secure, think about a phased return to the office or a hybrid arrangement of working from home and office, or suggest a trial period.
Should there be exceptions to returning to the office?
Having a ‘one size fits all’ rule is dangerous because what is reasonable for one employee may not be for another - especially when factors such as health, disability, pregnancy, race, or childcare are at play.
Don’t be swayed by the inevitable complaints you will get from those working in the office if, for example, you allow an unvaccinated pregnant woman to remain working from home. Employers need to be careful not to discriminate against those protected under the Equality Act 2010.
If you don’t have a flexible working policy (or haven’t reviewed it recently), now is the time to do so.
Can an employer refuse a work from home request?
Remember - employers can refuse a request to work from home if there is a good business reason for doing so.
In dealing with requests in a reasonable and balanced manner an employer can’t go far wrong.