During 3 years of pandemic turmoil, the working patterns of many employees changed dramatically as businesses and workers responded to the unprecedented crisis situation. Now, as a new year commences, and a new post-COVID era establishes itself, many employers will want to take stock and assess whether their pandemic working arrangements still meet the needs of the business. This is likely to be particularly relevant where businesses have employees who have not yet made a full return to working premises and are working hybridly or at home, when pre-COVID they did not do so.

These considerations for employers come at the same time as the government has finally published its proposals for reforms to the flexible working regime, highlighted in our previous Be Aware article.  The changes will give employees a day-one right to request flexible working arrangements and increase the number of requests which can be made each year, from one to two.

Whilst widely welcomed as a positive move, the flexible working reforms now coincide with a ‘new world’ of working practices. Traditionally, flexible working requests have been made by employees working fully in business premises who desire some flexibility with their times and/or hours of work, or to be able to work from home for some of the time.  Now, post-COVID, employers are likely to see a different type of flexible working request e.g. a request to maintain hybrid or home working arrangements already in place as a response to the pandemic, by employees who wish to avoid a full(er) return to business premises.

So, what is the impact of this in practice?  Firstly, employers need to be alive to the new types of flexible working request which might arise and carefully consider whether their employees’ current working practices are still valid and are still meeting the business’ needs – for many, they will be; many businesses and employees have reaped benefits from the pandemic-induced need to accommodate hybrid and home working.

However, there are other businesses for whom significant benefits arise from employees working from business premises, where they did so pre-COVID.  Employers should give careful thought to what these benefits are. They may include, for example, the opportunity for increased collaboration, knowledge sharing, creativity or training and may exist notwithstanding that, in the crisis situation imposed by COVID, employees appeared to work successfully from home.

Employers and employees may therefore have different opinions of the impact of hybrid or home working on matters such as performance and quality, with the effect that mandating a return to the workplace may well become a source of tension.  In this instance, employers will need to carefully weigh up the needs of the business against the potential risks of causing employee upset and the potential for loss of talent through resignations. In some circumstances, this may well be a difficult balancing act.

In short, however, employers are allowed to insist that employees work at the place of work designated in their contract of employment.  For many employees this will still be business premises, even if as a result of the pandemic they have been working, and are continuing to work, at home for some or all of the time.  This means that employees are unable to refuse to return to their workplace without their employer’s agreement. This can, of course, be sought through a flexible working request and this may well lead to an uptick in applications; it is therefore essential that managers are fully trained on how to manage requests and know how to follow the employer’s procedures properly (under the proposed reforms employees will need to be consulted about their request and there is a shorter time-frame of 2 months to respond to requests).  Compensation of up to 8 weeks’ capped pay (currently £4,568) may be payable for breaches. Consistency is critical to also avoid discrimination risks.

However, even when the government’s reforms to flexible working take effect, the decision on whether or not to agree to flexible working ultimately lies solely with the employer, dealing with the application reasonably.  The eight statutory grounds for refusal will remain but, in practice, their broad scope means that an employer who gives a flexible working request due consideration, tying in any negative impacts of hybrid/home working to one of the statutory grounds for refusal, is likely to be able to bring a rejection within the ambit of one of those grounds to the sufficient satisfaction of any ultimate tribunal scrutiny.

In summary, therefore, key actions which employers may wish to consider when managing flexible working requests from hybrid/home working employees are as follows:

• Is the employees’ contractual place of work at business premises?
• What are the business’ needs? Do employees’ hybrid or home working arrangements meet those needs? Or are the business’ needs best met by mandating a full(er) return to workplace?
• Is there a difference between different roles which can be clearly identified?
• Do the business’ needs mean that hybrid or home working is leading to one of the eight statutory grounds for rejection of flexible working being met e.g. is there a detrimental impact on quality? What evidence is available to support this?
• Are managers fully appraised of the business’ needs and know how to manage flexible working requests? Are managers acting consistently?
• Is the business keeping up-to-date with implementation of the proposed reforms, and keeping managers appraised of developments?

Useful links

Government response: Consultation on making flexible working the default

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