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 be 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.
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 the applicable process and can only reject the application if one or more of the following grounds would apply if the application were granted:-
The big question is whether any of the above grounds can be said to apply where an employee applying for flexible working has delivered well working from home during covid – perhaps where that employee worked more productively at home than when previously office based.
The answer will be fact specific for the business 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 with 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.
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 than when previous office based and where an employer is insisting on presenteeism simply for the sake of presenteeism.
If you would like advise on making a request for flexible working or how to respond to a rejection by your employer of such an application please contact David Greenhalgh.
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.
For expert employee legal advice, please contact David Greenhalgh. Advice can be given by phone, by online conference call or in person at 110 Bishopsgate.
020 3603 2177
