As we follow the “Roadmap” we will start to see a gradual return to the workplace. Many employers are consulting with staff on continued home working or bringing in policies which allow a certain level of working from home. All employers should be alive to the opportunities these new ways of working create for their business and their workforce. But can an employee insist on home working?
THE LEGAL RIGHT
There is no legal right to flexible working. There is a right to request flexible working (including working from home) for any reason for employees with 26 weeks’ service. The CIPD have launched a campaign to establish this as a “day one” right. The request must be dealt with in a reasonable manner and if rejected, the decision must be based on one or more of the following grounds:
- Burden of additional costs / Detrimental effect on ability to meet customer demand / Inability to reorganise work among existing staff.
- Inability to recruit additional staff / Detrimental impact on quality / Detrimental impact on performance.
- Insufficiency of work during the periods the employee proposes to work / Planned structural changes.
BALANCE OF POWER
This is all nothing new. But what is new is that those applying for flexible working may now have evidence that it will work! When dealing with flexible working applications in the past there has often been a lot of focus from managers on how it can be rejected rather than how it can be accommodated. Employees armed with evidence that they have worked effectively from home during the pandemic now may switch the balance of power. Instead of managers relying on vague references to a “detrimental impact on quality” to justify a rejection of an employee’s request, they are more likely to be asked “What part of my role have I not been performing from home?”. Employers should be prepared for this.
It is important to remember that what constitutes acceptable performance during a pandemic when everyone is (temporarily) working from home may not be the same when things return to “normal”. There may be aspects of the role that could not be performed and where lower performance of some duties had to be tolerated. An examination of all duties and the context in which they were, and will be, performed is likely to be required.
Working relationships and culture may play an important role in determining the extent to which employees are able to work from home. Interestingly, such issues are not specifically taken account of in the statutory grounds for rejection. In relation to working relationships then it is easy to see how there may be an impact on performance if the role involves interaction with a wider office based team or other stakeholders in the business. But what about culture? It must be arguable that your culture and values provide the foundation which underpins the delivery of great performance and quality. The question will be whether home working contributes to or detracts from your culture. This will vary in each organisation.
Aside from complying with the statutory requirements in rejecting a flexible working request, the risk of a discrimination claim is something that must also be considered. This could be direct discrimination where the application is agreed for say a white employee but rejected for a black employee. The employer must be able to point to a clear rationale as to why that difference in treatment was based on something other than race. A blanket ban on home working could result in indirect discrimination although it is perhaps hard to see how any group with a particular protected characteristic would be disadvantaged compared to others.
Employers should also recognise that working from home could constitute a reasonable adjustment for some disabled employees. Again, the need to work from home during the pandemic may demonstrate that such an adjustment is reasonable even where this may previously not have been thought to be the case.
If an organisation does see a flood of home working applications, then even for the most receptive employer, it may well be the case that not everyone can work from home! Employers are most likely to deal with applications on a “first come, first serve” basis. It will be important that they are dealt with consistently and that rejections are clearly explained and justified.