There have been mutterings from the Government for some time about allowing flexible working requests from day 1 of employment (instead of after 6 months as is presently the case) and even that flexible working should become the norm unless an employer can rebut that presumption – such changes have yet to be implemented and so in the meantime the current regime of flexible working requests still applies. But can such requests be rejected post COVID-19?
Most employment contracts will specify an office address as the place of work. Post temporary home working during COVID-19 employees can legally be requested to return to the office and from recent press reports such formal requests seem likely to increase as some employers are getting frustrated with the slow speed of the return of staff to office based working.
An employee with 6 months or more employment is entitled to make a request for flexible working and in doing so could request home working.
An employer receiving such a request must follow a proper process and can only reject such an application if one or more of the following grounds apply if the request were to be granted:-
The big question is whether any of the above grounds can be said to apply where an applicant for flexible working has delivered well working from home during COVID-19 – perhaps where that employee worked more productively at home than when previously office based.
The answer will be fact specific for the employer in question. How did the business operate pre-covid and how is it operating post-covid? How are clients/customers interacting with the business post-covid compared with pre-covid? If clients have returned to office working are they demanding face to face client meetings at the employer’s offices? Are certain employees needed in the office to be supervised/trained or to supervise/train others?
The risk as always for employers in rejecting requests for flexible working are claims for indirect discrimination, usually re sex or disability. In certain circumstances claims can also be made to the tribunal to force the employer to reconsider a request and for an award of 8 weeks pay.
It seems that the added risk post COVID-19 may be claims for constructive unfair dismissal – especially where applications for flexible home working are rejected where the above grounds do not apply, where an employee has worked more productively from home during COVID-19 and where an employer is insisting on presenteeism simply for the sake of presenteeism.
If you are an employer facing requests for flexible working we can advise you on how to respond. If you are an employee wishing to make a request for flexible working we can help you prepare that application to give you the best possible chance of success (or where you want to make such a request to try and leverage an exit package).
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This article/blog is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action.
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