Tuesday, June 28, 2022

How flexible do employers have to be? – Euan Bruce

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In recent weeks we have heard Lord Alan Sugar’s assessment of staff working from home as a ‘long lasting negative impact of the pandemic’. While acknowledging that he might be old-fashioned, he called the situation a “total joke” and suggested that “there’s no way people would be that productive working from home.”

Lord Sugar’s comments and the discussion they have sparked demonstrate the widely differing opinions that have developed regarding working from home. After two years of varying degrees of lockdown, some employers have wholeheartedly embraced it; others wanted employees to return to their desks as soon as possible. For employees, there is a similarly broad spectrum. Some like to save time and money on commutes, others prefer the structure and routine of an office environment – with a multitude of views in between.

From a legal point of view, it is important to recognize that despite the changed attitude during the pandemic, the employer still has the right to determine what it requires of its employees. Whether this also includes working in the office instead of at home is up to the employer. Face-to-face mentoring is undoubtedly easier, while many employers cite the benefits of employees learning from one another through osmosis and having a more positive culture from people collaborating face-to-face. Regardless of the employer’s reasoning, it is up to him to make the decision.

Many employers are proactively implementing policies to regulate their employees’ ability to work more flexibly. For organizations that have not taken this proactive step, employees are eligible to submit requests for flexible working hours. Such requests may include home working as well as any other adaptation of an employee’s role. Once a formal application is made, an employer is legally required to review the application and must go through an assessment process, including the right to appeal, which must be processed within three months of the application being submitted.

If the employer wishes to refuse the application, they can only do so for a limited number of reasons. While limited, these are broad enough to cover most situations where an employer would reasonably wish to refuse an application. When considering home work requests, any impact on quality, performance, or ability to meet customer needs is probably most relevant.

It is important to check whether the employer is of the opinion that one of the prescribed reasons for refusal applies. The employee may disagree with the assessment, but provided the employer has addressed the issue sensibly and can provide reasons and evidence to support its conclusion, it is very difficult for an employee to challenge the conclusion. As a result, the legal risk is low, provided the employer follows a fair process and takes due account of the application.

There will be circumstances where the risk is increased, particularly where the issue is potential discrimination. This usually occurs in relation to a flexible work request from a new mother or a worker who wants to adapt their role to accommodate a disability. In these circumstances, employers are subject to a higher standard and must be able to demonstrate that the refusal of the application is objectively justified. The employer must prove that the refusal is based on a legitimate aim and that it is acting proportionately in pursuing the aim.

With the number of workers trying to adjust their working arrangements after being given a taste for a more flexible approach during lockdown, the real risk for employers could be a matter of consistency. While many managers will be familiar with the demands of a flexible work request, many are not, and some may even share Lord Sugar’s ‘old-fashioned’ way of thinking that people should only be in the office. Managers who have the knowledge and confidence to approach issues consistently across the workforce are likely to pose the greatest challenge. A lack of consistency is likely to increase the risk of discrimination claims.

However, when flexible working requests are properly handled, employers should be confident that they know best what is required for their business. While the legal risk is relatively low, some employees’ expectations have changed significantly, and they have the right to vote with their feet by looking elsewhere for flexibility.

Euan Bruce is a Senior Lawyer in DLA Piper’s employment law practice

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