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Flexible working: how to request working from home after the pandemic
With some organisations demanding staff return to work in offices, what rights do housing professionals have to request flexibility and home working? Employment solicitor Jane Bowen explains
Working from home and the flexibility this allows became a way of life for many of us during the pandemic, with more than a quarter of employees carrying out some home working. But as many employers are requiring a return to the office, the government has recognised the change in landscape for flexible working and has launched a consultation on the topic. So, what do employees need to do if they want to continue working flexibly and what do employers need to do to accommodate these requests?
“The employer has to notify the employee of their decision within three months of the request being made”
At the moment, an employee needs six months of continuous service to be able to put in a flexible-working request. The consultation is looking at whether being able to request flexible working should be a day-one right. It is important to emphasise that if this becomes a day-one right, it is still only a right to request flexible working and employers can still refuse this for business reasons.
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The first step an employee needs to take is to put in a formal flexible-working request. This request should be in writing and state what changes they want to make to their working arrangements and when they would like them to come into effect. Employees should also explain what impact, if any, they believe the change will have on their employer and how that could be dealt with. The law states that the employer has to consider this request in a reasonable manner.
The employer has to notify the employee of their decision within three months of the request being made. If an employer is unable to grant a request, they should meet the employee to discuss this and any alternatives they may be able to accommodate. If the request is refused, the employee should be informed of the reasons why and, whilst not strictly a legal requirement, most employers offer a right of appeal.
“Employers are going to find it harder to justifiably deny flexible-working requests to work from home if their employees have already been doing so with no detriment to their work and are able to evidence this”
When dealing with flexible-working requests, the power is heavily in favour of employers. They have eight business reasons why they can legitimately deny a flexible-working request, such as a negative impact on the business or there is no work for the employee when they want to work. As a result, the employer has quite a lot of leeway in this situation. However, recent cases have shown that employers need to be careful when rejecting flexible-working requests.
Estate agent Alice Thompson hit the headlines when she successfully sued her employer for refusing her flexible-working request to leave work an hour early to pick her daughter up from nursery. An employment tribunal awarded her £185,000 after it ruled she had suffered indirect discrimination in relation to her request. This is a perfect example of how employers, while being able to reject a request, can’t just dismiss it out of hand. They have to consider it properly and, if they can’t accommodate a request, they should be willing to discuss possible alternative working patterns that wouldn’t affect their business negatively.
Employees who make up the millions of people who have successfully worked from home for the past 18 months will have a strong argument for home working to continue if there has been little impact on service delivery or output. Employers are going to find it harder to justifiably deny flexible-working requests to work from home if their employees have already been doing so with no detriment to their work and are able to evidence this.
“We are seeing more and more of our housing association clients receive flexible-working requests and I would only expect this to continue across the UK workforce in the coming months and years”
That being said, working from home has had a substantial impact on junior staff in all sectors. They have not been exposed to the on-the-job learning that comes with sitting alongside more senior staff. This is likely to be one of the reasons employers are requiring a return to the office and feel working from home cannot continue to the extent it has been.
We are seeing more and more of our housing association clients receive flexible-working requests and I would only expect this to continue across the UK workforce in the coming months and years. With the pandemic showing employers that their employees can work from home efficiently, attitudes to the working from home revolution are changing slowly. However, as the recent case of Alice Thompson shows, not all employers are prepared to embrace the flexible-working age.
Jane Bowen, employment solicitor, Devonshires
