Key considerations for employers dealing with requests to work differently in the context of the ongoing Covid-19 pandemic.
At the time of writing, the UK has seen a recent steep increase in Covid-19 infections and projections of increased hospital admissions and deaths do not make comforting reading. As a consequence, the Government has now changed tack and reverted to its previous message that those who can work from home, should work from home.
One longer term impact of the pandemic is very likely to be increased employee expectation that they will be able to work flexibly, including working from home or from other locations. A survey of employees undertaken by work-life balance charity Working Families in June this year found that 90% of employees wanted their employers to continue flexible working practices following the pandemic.
In this article, we look at key considerations for employers as they deal with requests to work remotely in the context Covid-19.
Readers may be interested in our two webinars on the subject of flexible working recorded in June and July this year. You can register to hear the recordings of these on demand at https://www.wrigleys.co.uk/events/recorded-webinars/.
Who is eligible to bring a statutory flexible working request?
All employees with at least 26 weeks' service for their employer have a statutory right to request flexible working. There is no longer any requirement to have childcare responsibilities to make such a request. Indeed, the employee does not have to explain their reasons for the request, although many will include such details to support their case. Even before the pandemic, we saw a trend of employees seeking to reduce or compress their hours and/or to work from home via statutory flexible working requests in order to provide the flexibility to pursue their own business, hobbies or studies.
Although last December may now seem like a very long time ago, the new Conservative Government then announced its intention, subject to consultation, to make flexible working the default position unless an employer has a good reason not to offer this. Of course due to the current crisis, it may be some time before this Government consultation takes place and legislation is brought forward to make this a reality. In the meantime, however, many employers are already working on this principle, as evidenced by Working Families' research for its family friendly employers benchmark. Working Families found that 52% of employers surveyed analyse all jobs to determine the potential for flexibility before advertising vacancies.
How should flexible working requests be handled?
Employers must handle statutory flexible working requests reasonably. This includes taking into account the statutory Acas Code of Practice on dealing with such requests.
Where employers cannot agree to the request, they should consider whether there is a compromise arrangement which can be agreed. For example, it may not be possible to allow an employee to work remotely full time but it may be possible to agree to remote working for some of the time if they can attend the work place on some days in the week or month.
Decisions on statutory flexible working requests must be made within three months, although employers and employees can agree to extend this period between them, for example to allow time to trial the changes. Employers should allow employees a right of appeal.
Employers should be aware that employees who have brought statutory flexible working requests are protected from detriment and dismissal because they have done so.
Can a request to work remotely be a statutory flexible working request?
The short answer to this is, yes. Employers sometimes assume that a flexible working request will always be a request to reduce working hours. This is not the case. Employees can request to change their place of work and pattern of hours while maintaining the same number of contractual hours.
It is also perfectly possible for employees to request additional hours in a flexible working request. Indeed, with the removal of commuting time and the possible time efficiencies of replacing face to face with remote meetings and events, there may be a significant number of staff who now feel able to increase their hours if they are permitted to work from home.
Will requests to work remotely be harder to refuse following the pandemic?
Flexible working requests can only be refused on the basis of one or more of eight statutory business reasons. For example, employers can refuse on the basis that the change will impact negatively on the organisation's ability to meet customer demand, or that work (such as face to face work) cannot be reorganised among other employees. In relying on these business reasons, employers should not make assumptions about a negative impact they perceive remote working will have on service users, customers, clients, other employees or on productivity. Ideally, employers should have evidence to support their decisions and should use a trial period to test out an arrangement where that evidence does not exist.
Over the last few months, many employers have effectively been conducting a prolonged trial period of remote working for some roles. Where these temporary working practices have been successful, it will certainly be more difficult for employers to refuse requests to continue to work remotely. Anecdotally, employers have reported sustained and, in some cases, increased productivity from those working from home. However, this will not always be the case. Evidence of operational and technological problems, customer complaints, line management issues and poor performance or productivity gathered over recent months could of course support a decision to refuse a permanent change to remote working.
How should we deal with requests to work remotely where there may be redundancies?
Many employers will now be faced with very difficult decisions where the prospect of another six months of Covid-19 restrictions may lead to a redundancy situation due to a reduction or cessation of some types of work requiring physical attendance at a workplace. Carrying out a fair redundancy process includes a duty on the employer to look for alternatives to redundancy and ways to mitigate its effect. This should include serious consideration of suggestions from employees to consider options for remote working, including the possibility of changing the nature of the service offered by the organisation to one which can be delivered remotely.
Where employees bring formal requests for remote working in the context of or as an alternative to a redundancy, it will still be important for the employer to follow a reasonable flexible working request process and to ensure that any decision to refuse is supported by well-evidenced business reasons.
If we agree to a request to work remotely, will it be a permanent change?
If employers agree to a statutory flexible working request, this will be a permanent change to the employment contract. It is therefore important to clarify the changes which are agreed in writing and to ask the employee to sign this document to evidence that agreement.
Where a trial period is undertaken, it is important that the terms of this temporary arrangement are set out in writing. Employers should state that contractual terms will revert to normal following the trial, subject to review and the final decision of the employer.
Employees only have the right to make one statutory flexible working request in any 12 month period. If employees made a statutory request at the start of lockdown in March, they will need to wait until next March to bring a further request under the statutory scheme.
Do we need to respond in the same way to an informal or non-statutory request?
Any members of staff can of course make an informal request to work flexibly at any time, but the employer is not required to follow the statutory process in that case. An informal request or a request from a member of staff who is not eligible under the statutory scheme does not entail the same process. However, employers should be mindful that they must still respond reasonably to such requests and on the basis of sound business reasons. Employers could otherwise risk discrimination, Part Time Workers Regulations or constructive dismissal claims.
Many employers channel all flexible working requests, statutory or otherwise, through the same internal process. This has the advantage of dealing with requests consistently and providing a paper-trail to evidence decision-making.
Taking a proactive approach and dealing with multiple requests
Acas recommends that each request is dealt with in the order it is received. However, an agreement to one request will inevitably impact on the ability of an employer to agree future requests. In anticipation of receiving a number of requests in the coming months, employers would be well advised to carry out a proactive review of the impact of remote working in different roles on a more permanent basis, including an analysis of the impact of a combination of remote and non-remote working. Carrying out staff surveys will also enable employers to take an overview of the likely level of demand for more flexible and remote working options.
While it is useful for employers to be proactive in assessing impact and setting policy on remote working, it will always be necessary to look at each individual request on its own merits and to ensure that any refusal is based on one or more of the statutory reasons, supported by evidence. Employers who implement a blanket policy of refusing certain types of request (such as for remote working) risk claims including indirect discrimination and for a failure to make reasonable adjustments for disabled employees. For more information, please see our previous article "In a world of change equality law still applies" on the interaction between Covid-19 and potential discrimination claims which is available here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.