As Covid-19 restrictions end and the country opens back up, there has been considerable debate about how businesses should approach bringing employees back to work.

 

Labour has recently been pushing for flexible working to become a default employment law right, along with other potential law reforms such as introducing a ‘right to switch off’ from work. Under this right, employers would have a duty to accommodate flexible working unless there is a good reason not to, for example, where the job cannot be done flexibly.

 

As a business, this may sound like a nightmare, particularly if you have had difficulties adapting to home working. Your primary concern at this time will be getting back to normal (well, as normal as possible), and this may mean bringing your workforce back to the office or place of work. Even if your employees could ‘technically’ do their jobs from home, you may be concerned about productivity, opportunities for collaboration and your employees’ mental wellbeing.

 

Fortunately for employers, it appears unlikely that hybrid working will become an absolute employment law right.

 

However, there has been significant discussion about how the law around flexible working requests could be strengthened, such as introducing a default right that would require employers to prove why flexible working is not possible, rather than putting the onus on employees to persuade their employer.

 

Either way, as an employer you still have a legal duty to consider reasonable requests for flexible working.

 

Here, we set out employers’ legal responsibilities to consider flexible working requests and what the landscape could look like in a post-Covid-19 world.

 

Do employees have a right to work from home?

 

Even during the height of lockdown, employees did not have an absolute right to work from home. And as things stand, that is not set to change as we emerge.

 

Employees should generally comply with ‘reasonable requests’ from their employer. Employment contracts should always specify the employee’s place of work, so employers can ask their employees to return to the office now the Covid-19 restrictions have lifted.

 

Current employment law on flexible working

 

Under current employment law, employees who have been employed for at least 26 weeks have a statutory right to make a flexible working request. Employers have a duty to reasonably consider the request, but they may refuse it if they have a good reason. The grounds for refusing a request are:

 

• Burden of additional costs
• Inability to reorganise work among existing staff
• Inability to recruit additional staff
• Detrimental effect on ability to meet customer demand
• Detrimental impact on quality
• Detrimental impact on performance
• Insufficiency of work during periods the employee proposes to work
• Planned structural changes to the business

 

These grounds are wide and prior to Covid-19, an employer would usually be able to refuse a request in the majority of situations.

 

In line with equality law, employers cannot refuse a request for a discriminatory reason. For example, refusing a working mother could amount to discrimination, even if you also would have refused anyone. This is because blanket policies to refuse flexible working requests tend to overwhelmingly disadvantage women. Flexible working may also be a reasonable adjustment for people with disabilities.

 

When dealing with flexible working requests from people who may have a protected characteristic under equality law, employers should always seek employment law advice before refusing.

Flexible working during Covid-19

 

The Covid-19 pandemic changed the face of office work. With England in lockdown, the government said that businesses should ask their employees to work remotely wherever they can. Similar guidance was given in the other UK countries.

 

Workers who may not have made a flexible working request before coronavirus have encountered some of the benefits of homeworking, such as no commute, more time to spend with family and more energy to invest in personal interests. As such, many workers are reluctant to return to the office.

 

Your business still has the eight grounds above to refuse a flexible working request. However, if your employee has been successfully doing their job from home for the past year and a half, you may find it harder to decline the request.

 

For example, you may not be able to claim that there has been a detrimental effect on the ability to meet customer demand if your employee has been successfully meeting customer needs from home during the pandemic.

 

Employees cannot take legal action just because their request was rejected. But they may make an Employment Tribunal Claim if:

 

• They made a reasonable and workable request that you rejected without proper consideration
• You ignored or mishandled the request

 

Flexible working post-Covid-19

 

With growing appetite for flexible working, will the law change now Covid-19 restrictions have lifted?

 

In their 2019 manifesto, the Conservative government promised to consider changing the law to make flexible working the ‘default option unless employers have good reasons not to’. Despite this, the government recently stated that there are no plans to reform flexible working law but are planning a consultation on the issue.

 

In response, Labour has stated that failing to take urgent action leaves employees ‘vulnerable’ and that it allows ‘employers to dictate the terms to their staff’.

 

However, the Confederation of British Industry (CBI) claims that giving employees further rights would damage city centre economies and harm young employees who may not receive sufficient training if permanently working from home.

 

As a potential alternative, the Chartered Institute of Personnel and Development (CIPD) is campaigning to make access to flexible working fairer while preserving employers’ ability to refuse requests.

 

Under the Flex From 1^st campaign, employees would be given the right to make a flexible working request from day one, rather than having to wait 26 weeks after being employed. Employees would also have the right to make as many flexible working requests as they like – currently, the limit is one request per year in most cases.

 

So, as it stands, the law has not changed. Employers should continue treating flexible working requests considerately and fairly.

 

If your business does not have a flexible work policy, it is worth implementing one. And it is crucial to maintain strong communication with your employees to gauge how they feel about returning to the office and how you can take their interests into account while doing what is best for the business.

 

Expert employment law advice for your business

 

Navigating employment law in a post-coronavirus world may feel like a minefield. But with the right advice, you can keep your employees happy and motivated without compromising the interests of your business.

 

Our employment law solicitors help employers find practical, creative solutions to complex and often contentious workplace issues. We can assist with a wide range of flexible working related matters, including:

 

• Advice about returning employees to the office after Covid-19
• Helping you put in place strong flexible working policies and procedures
• Considering flexible working requests, including where there are equality law concerns
• Resolving disputes over flexible working, including defending Employment Tribunal claims

 

To find out more about how we can help, please contact our friendly and highly experienced employment law solicitors in Wells, Street or Somerton.