While the official government advice continues to implore employers to encourage staff to work from home where this is possible (the simple reason is to avoid exposure to people outside someone’s household as much as possible and to avoid overcrowding on public transport, which is, despite the reduction of the 2m rule, running at around 30% capacity to the pre-pandemic normal), a growing number of backbench MPs as well as employers want staff to return to their offices.
This has led to a number of national newspapers publishing articles under the guise of HR advice citing unnamed “HR experts” stating that employees do not have a right to work from home.
While there is no explicit right to work from home, things are far from that simple.
Every employee who has worked for their employer for at least 26 weeks has the statutory right to request flexible working and this includes working from home.
The law only provides for a very limited set of reasons a business may use to turn down such a request:
- extra costs that will damage the business
- the work cannot be reorganised among other staff
- people cannot be recruited to do the work
- flexible working will affect quality and performance
- the business will not be able to meet customer demand
- there’s a lack of work to do during the proposed working times
- the business is planning changes to the workforce.
Considering a large number of employees have been working from home just fine over the last few months, many with increased productivity, it is extremely difficult to see how a business would be able to justify a refusal of an application for flexible working with any of these grounds.
However, like the reasons to refuse an application are outlined in law, so is the process of applying for flexible working. A conversation or an informal e-mail do not count as a request.
The request is formal and must include:
- the date
- a statement that this is a statutory request
- details of how the employee wants to work flexibly and when they want to start
- an explanation of how they think flexible working might affect the business and how this could be dealt with, for example if they’re not at work on certain days
- a statement saying if and when they’ve made a previous application.
An employee can only apply once in a 12 months period.
When a request is received by an employer, this must be decided on within 3 months unless a longer period is agreed with the employee.
Any agreed changes must be recorded in an updated contract of employment or by issuing an addendum outlining the clauses which have been superseded.
A rejection of a request must be formal, outlining the business reasons as to why the request cannot be accommodated.
It is possible to accept a request pending a trial period, but the final decision must be made within three months of the initial request unless both parties agree to extend that period, in writing.
A word of warning – where an employer refuses a request without valid reasons (i.e. at least one of seven prescribed in law and with proof that this reason applies), or where a request is not dealt with as required, an employee is entitled to lodge a claim to the Employment Tribunal with the default award being 8 weeks’ wages.
Rejecting a request also brings the risk of other claims. If an employee who has requested flexible working is treated less favourable than others this would be considered detrimental treatment; if an employee is dismissed and claims that the dismissal is linked to their application, then the dismissal is automatically considered unfair and the burden of proof shifts to the employer.
In addition, there are risks falling foul of provisions made by the Equality Act 2010 and a rejection could easily qualify as direct or indirect discrimination.