Flexible working requests and working from home in the wake of the Government’s roadmap out of COVID-19 lockdown

Increasing numbers of employees are requesting to work from home, and employees with 26 weeks' continuous employment can make a formal request to work flexibly. While there is no automatic right to work from home, any request to work from home must be carefully considered; there are challenges to home working but there are also benefits, and to refuse a request to home work could be considered discriminatory. This article includes guidance for employers on how to approach flexible and home working requests as lockdown eases.

As the Government eases lockdown, employers and employees alike are considering the flexible and home working implications, while the Minister for Women and Equalities has called for employers to make flexible working a standard option for employees.

Benefits of flexible and home working, and how to approach requests

Flexible and home working can reduce the need for office space, increase productivity, and facilitate skills retention by allowing employees who, but for the ability to work flexibly, would not, due to relocation, family commitments or disability, be able to work for the employer.

Flexible working is been also encouraged by Ministers. The Minister for Women & Equalities has requested employers make flexible working a standard option for employees. The Minister went on to state that flexible working will help boost opportunities for women and reduce geographic inequality as the economy recovers from COVID-19.

As lockdown eases employers should review their working requirements, and office needs, and assess staff preferences. Spending time putting in place a homeworking policy now will help employers meet business and employee needs going forward, and ensure employers are consistent in their approach to requests for flexible/home working.

An approach which records precisely what is agreed, and sets out clearly that arrangements will be reviewed can allow employers and employees to trial flexible and home working with the view to making this a long-term arrangement.

As flexible and home working becomes more common place, employers should ensure they have in place policies and procedures which support those working from home, and meet employers’ continuing obligations, in particular in relation to health and safety and data protection.

Refusing requests to work flexibly or work from home: Legal implications

There are some potential consequences to refusing flexible working requests/requests to work from home, particularly without appropriate justification. Statistically, more women than men seek flexible working arrangements, consequently if an employer refuses a woman’s request to work from home it may give rise to allegations of indirect discrimination.

Refusing a request to work from home made by an individual with a disability may also be considered discriminatory if the employer is failing to make reasonable adjustments.

If an employee makes a request to work flexibly under the Employment Rights Act Framework, an employer must respond to the request in accordance with the Framework. This includes acting in a reasonable manner, notifying the employee within the specified period, and only refusing the request on one or more of the 8 specific grounds.

It is advisable to document and save all requests and decisions made on flexible working and working from home in case the decision is later scrutinised in an employment tribunal setting.

For more information on home working considerations refer to our article on home working published in October 2020, available here or please do get in touch with one of the Employment team if you want to discuss.

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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