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Flexible working requests post-lockdown

Following lockdown and the countrywide move to home working caused by the pandemic, many employers are embracing new, more flexible ways of working. Hybrid models of work, split between the office and home, are fast becoming the norm.

However, others have taken the view that, whilst their employees were able to work from home through lockdown, this was merely a product of necessity and far from an ideal arrangement. Accordingly, such employers view a return to the workplace as not only desirable but necessary.

We are seeing a material number of employer clients reporting that their employees are reluctant to return to their traditional workplace. Invariably, these employees assert that they have managed to work effectively from home for over a year and, in that context, question why they should be forced to come back to the office.

Employers who are adamant that staff must return to the workplace now that the Government’s edict to work from home is over will be encouraged by the facts that:

  • employees who worked from their employer’s premises pre-pandemic have no right to demand to work from home, even if they consider they have done so successfully for an extended period;
  • the Government’s work-from-home instructions were only temporary and, of themselves, had no effect on the contract of employment between employer and employee; and
  • absent any agreed changes, the default position concerning the employee’s normal place of work is always as stated in the contract of employment.

This means that an employee who refuses a reasonable request to return to the workplace is at risk of facing disciplinary proceedings for failing to follow reasonable management instructions.

Of course, it is imperative that the employer always carefully considers an employee’s reasoning for refusing to return to work. Failure to do so could see the employer exposed to potential claims (for example, for discrimination where the refusal is linked to an employee’s disability).

If an employee wants to change their pattern of working then, provided they are eligible (i.e. they have at least 26 weeks’ service and have not made another formal request in the last 12 months), they should submit a flexible working request. Such a request should set out (amongst other things) what changes they want, when these should take effect and what impact they think the change will make. The employer will then need to follow a fair process (in accordance with the relevant ACAS guidance as to best practice) when determining the request. Flexible working requests can only be refused for one or more of the statutorily prescribed reasons (such as excessive cost, inability to reorganise work amongst staff and negative effect on the employer’s ability to meet customer demand).

It is worth remembering that employees only have the right to request flexible working; they do not (at least, not yet) have a right to flexible working as such. Notwithstanding this, employers who find themselves in this situation are best advised not to dismiss such a request out of hand and to remain open-minded. Like it or not, the pandemic has changed the way we all work and an employer who fails to embrace this new world may well find themselves at a disadvantage in the war for talent and staff morale/retention (quite apart from any exposure to which a failure to follow a fair process may give rise).

If you have any questions about making or dealing with a flexible working request, please email or call our Employment Law team today on 0113 207 0000.

 

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Paul Kelly

Partner and Head of Employment
Employment Law
PKelly@LawBlacks.com
0113 227 9249
@PaulLawBlacks
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Paul Kelly Blacks Solicitors LLP