CORONAVIRUS - FLEXIBLE WORKING - 13.07.2020

Dealing with post-lockdown flexible working requests

The coronavirus pandemic has resulted in large numbers of normally office-based employees working from home. When offices do re-open, it’s likely to result in an increase in flexible working requests. Can you still say no?

The law

Employees with at least 26 weeks’ employment have the right to make a written request for flexible working, and this includes applying to work from home. We discussed the flexible working provisions in yr.1, iss.8, pg.4 (see Follow up ). In summary, if an employee makes a request you must deal with it in a reasonable manner, notify them of the outcome (including any appeal) within three months and can only refuse it on one or more of eight business grounds.

Pro advice. Be prepared for an influx of flexible working requests seeking a permanent homeworking arrangement when your office is ready to re-open. It’s not unreasonable for employees who have successfully worked from home during lockdown to ask for this to continue. The increased use of video conferencing during lockdown has also proved that it’s easy to hold one-to-one team and client meetings remotely.Read the Acas Code of Practice on flexible working requests (see Follow up ).

Pro advice. The government’s stance is still for employees to work from home where they can, and this may remain the case for a while yet.

Dealing with future requests

Where an employee has proved that they can maintain their productivity and performance levels when working from home, it’s now going to be a lot harder for you to rely on one of the business grounds to deny a request for permanent homeworking. For example, will there really be a detrimental impact on quality or performance when there wasn’t during lockdown? You’ll effectively need to show that something you’ve permitted for months just doesn’t work, which may be difficult if you’ve no evidence of having discussed with the employee any problems that arose during their enforced homeworking. Now might be the time to address those problems!

Pro advice. This doesn’t mean you have to accept an employee’s homeworking request in its entirety, as you can agree a compromise. When you return to a new normality, you will probably still want a daily core of staff in the office as having whole teams working from home at once might cause too much dislocation in day-to-day operations (whilst this was just about tolerable during lockdown, it might not be on a long-term basis). So, it could be that you allow everyone partial homeworking if they want it, say two or three days a week. You could open communications now with staff to seek their opinions, with a view to offering it to commence when your office re-opens, in the hope of seeing off any formal flexible working requests later on.

Pro advice. If you are going to wait for requests to come in, think about how many you might receive and how you will deal with them. The best approach is a first come, first served basis. You just need to ensure you consider each request carefully, you have a genuine business ground for any refusal and that your decision isn’t tainted by discrimination.

A right to work from home?

The government had mooted the idea of enshrining a post-lockdown right to work from home in law, but this was aimed at protecting those who feel it’s unsafe for them to return to work. So, it’s unlikely that an unqualified right to work from home will be introduced. However, a new Employment Bill will, subject to consultation, make flexible working the default unless employers have good reason not to allow it, so you will need to continue to embrace flexible working one way or another.

The balance of power has changed and it’s now harder to rely on one of the eight business grounds to deny a request for permanent homeworking from an employee who has successfully worked from home during lockdown. You could reach a compromise of partial homeworking and partial office-based working.

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