Will home working become the new normal?

December 2020 | SPOTLIGHT | LABOUR & EMPLOYMENT

Financier Worldwide Magazine

December 2020 Issue

In the current coronavirus (COVID-19) pandemic climate, many employers and employees are realising the benefits of working from home. For employees there is the feeling of a better work-life balance and for employers, the welcomed prospect of the ability to lower outgoing costs such as those associated with office space.

Before the recent spike in home working forced by COVID-19, there has generally been a negative approach to flexible working requests, including requests to work from home. It is too early to determine the long-term impact that working from home during the COVID-19 crisis will have, however it is anticipated that a greater number of employees may wish to work from home in the future and that employers may not be so averse to this having found that home working does not necessarily conflict with its own business needs.

The statutory right to request flexible working

Since June 2014, employees who have been continuously employed with the same employer for at least 26 weeks have a statutory right to submit a request for flexible working arrangements, which includes working from home.

Employees may only make one statutory request in any 12-month period, the request must be in writing and must include the following: (i) the date the request is being made; (ii) full details of the employee’s proposed changes to the working conditions; (iii) when the employee would like the proposed changes to come into effect; (iv) what impact, if any, the proposed changes would have on the employer and the employee’s suggestions as to how any such impact might be dealt with; (v) and a statement that the request is made as a statutory request and confirmation of the dates of any previous applications made for flexible working.

Sufficiently dealing with requests

Employers must deal with any statutory request for flexible working in a reasonable manner. The employer must notify the outcome to employee within three months of submission of the request (unless extended by mutual agreement) and may only refuse a request for one of eight reasons set out within the legislation.

Employers will be expected to consider the advantages and disadvantages of the request, discuss the request with the employee (if appropriate) and allow the employee to appeal any decision should they wish. If the employer intends to approve a flexible working request, it will not be necessary to hold a meeting with the employee. If, however, the employer needs to discuss the request with the employee before granting the request or is considering not granting the request, then a meeting must be held with the employee to discuss the matter. Further, the employer must allow the employee to be accompanied by a work colleague at that meeting should they wish to be so.

An employer may treat a request for flexible working as having been withdrawn by the employee if, without good reason, the employee fails to attend a meeting arranged to discuss their request and a further meeting rearranged for that purpose.

Employers can only reject a request for one of the following business reasons: (i) the burden of additional costs being placed upon the employer; (ii) an inability to reorganise work among existing staff to accommodate the request; (iii) an inability to recruit additional staff to accommodate the request; (iv) a detrimental impact on the quality of work; (v) a detrimental impact on performance of the work; (vi) a detrimental effect on the ability to meet customer demand; (vii) insufficient work being available for the periods the employee proposes to work; and (viii) a planned structural change to the business.

Employers must also be conscious not to discriminate unlawfully when determining any flexible working requests. For example, an employer cannot refuse a flexible working arrangement because the employee making the request has recently returned from maternity leave or other parental leave. To avoid any risks, it would be recommended to seek specialist legal advice in this regard.

The statutory scheme on flexible working is supported by two Advisory, Conciliation and Arbitration Service (Acas) documents – Acas being an independent public body that receives funding from the government, providing advice and assistance in resolving disputes – the ‘Statutory Code of Practice, Handling in a reasonable manner requests to work flexibly‘ (the Code) and ‘The right to request flexible working: an Acas guide‘ (the Guide).

When determining on complaints brought with respect to the statutory scheme, employment tribunals must take the Code into account when it appears relevant and as such, employers should take the Code into consideration when determining requests for flexible working.

The risk if requests are not dealt with sufficiently

In circumstances whereby an employer does not sufficiently deal with a statutory request, an employee may submit a claim to an employment tribunal based upon any of the following. First, the employer did not deal with the request in a reasonable manner. Second, the employer failed to notify the employee of the outcome within three months of submission of the request (or such other period as extended by mutual agreement). Third, the employer did not rely on one of the eight statutory grounds in refusing the request. Fourth, the employer based its decision on incorrect facts. Finally, the employer treated the application as withdrawn when the grounds entitling the employer to do so were not applicable.

In light of the risks of any disgruntled employees pursuing a claim, employers must ensure that any requests for flexible working are dealt with sufficiently, particularly as it is anticipated that a greater number of employees will wish to work from home in the future. Considerations should also be given to any policy and procedural updates that may be required by employers to accommodate an increased volume in a home working workforce.

Abigail Grace Williams is a solicitor at Lewis Nedas Law. She can be contacted on +44 (0)207 387 2032 or by email: awilliams@lewisnedas.co.uk.

Abigail Grace Williams

Lewis Nedas Law