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.<\/p>\n
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<\/a>.\u00a0 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.<\/p>\n Whilst widely welcomed as a positive move, the flexible working reforms now coincide with a \u2018new world\u2019 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.\u00a0 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.<\/p>\n So, what is the impact of this in practice?\u00a0 Firstly, employers need to be alive to the new types of flexible working request which might arise and carefully consider whether their employees\u2019 current working practices are still valid and are still meeting the business\u2019 needs \u2013 for many, they will be; many businesses and employees have reaped benefits from the pandemic-induced need to accommodate hybrid and home working.<\/p>\n However, there are other businesses for whom significant benefits arise from employees working from business premises, where they did so pre-COVID. \u00a0Employers 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.<\/p>\n 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.\u00a0 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.<\/p>\n In short, however, employers are allowed to insist that employees work at the place of work designated in their contract of employment. \u00a0For 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. \u00a0This means that employees are unable to refuse to return to their workplace without their employer\u2019s 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\u2019s 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).\u00a0 Compensation of up to 8 weeks\u2019 capped pay (currently \u00a34,568) may be payable for breaches. Consistency is critical to also avoid discrimination risks.<\/p>\n However, even when the government\u2019s 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.\u00a0 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.<\/p>\n In summary, therefore, key actions which employers may wish to consider when managing flexible working requests from hybrid\/home working employees are as follows:<\/p>\n Useful links<\/strong><\/p>\n Government response: Consultation on making flexible working the default<\/strong><\/a><\/p>\n\n