Managing remote or homeworking requests in an agile world

Flexible working is on most workers’ wish list. A YouGov survey found that 70%  of workers have a desire to work more flexibly, with only 6% working the traditional 9 to 5 hours and almost half would prefer to work a longer day in return for a shorter week. Just recently the TUC was heard campaigning for a 4-day working week.

The appetite for flexibility is only going to grow as the next generation of talent – Gen Zs– enter the workforce who, research shows, thrive on agile working. New measures which could significantly impact the HR profession have been announced with the Government saying it will “consider creating a duty for employers to consider whether a job can be done flexibly and make that clear when advertising”.

But, as the law currently stands, do employees have a legal right to work from home and can this vary according to seniority? What are the permitted reasons to reject a request? What are some of the likely areas of potential discrimination and what are the legal implications of some of the most common workplace scenarios?

The legal right to homeworking

Overall, there is no standalone legal right to work from home regardless of seniority. Under the Employment Rights Act 1996 and the Flexible Working Regulations 2014, employees with 26 weeks’ continuous employment may make a request for flexible working for any reason. The request can include i. a change to working hours; ii. a change to when they are required to work; and iii. a change to the place of work. These three types of changes cover a multitude of flexible working patterns, such as part-time working, annualised hours, compressed hours, flexi-time, home-working, job sharing, shift working, staggered hours and the only limits to any other forms of flexible working are the employee’s imagination.

The statutory framework requires a formal procedure to be followed, which involves an eligible employee submitting a request in writing, setting out details of the change they want; and if necessary, the employer holding a meeting with the employee to discuss the request. However, one of the key features or downfalls of the statutory regime is that whilst an employer must deal with an application for flexible working in a ‘reasonable manner’, the employer does not have to agree to the request.

Rejecting a request

An employer may refuse a request for flexible working, under the statutory scheme, for one (or more) of the following prescribed reasons:

• The burden of additional costs;
• Detrimental effect on ability to meet customer demand;
• Inability to reorganise work among existing staff;
• Detrimental impact on quality;
• Detrimental impact on performance;
• Insufficiency of work during the periods the employee proposes to work; or
• Planned structural changes.

Notwithstanding an employer’s right to refuse a request, the ACAS Code suggests that employers should fully consider any requests for flexible working, looking carefully at the potential benefits from the business’ perspective as well as the employee’s. For example, agreeing to a request for flexible working may increase employee motivation, efficiency, loyalty and morale.

Once a decision is made, the employee should be notified as soon as possible, in writing, and given the right of appeal against the decision. Although not covered by the legislation, as an alternative to rejecting an employee’s request for flexible working and as a compromise, an employer may consider putting forward alternative suggestions or offer a trial period before any final decision is made.

Potential Discrimination

Whilst an employer may have a lawful ground to refuse a request for flexible working there are other pitfalls which may lead to a claim of discrimination such as sex discrimination. For example, where a request from a woman for flexible working in order to balance work with childcare responsibilities is turned down without justification. This could lead to a claim of indirect sex discrimination on the basis that women are still more likely than men to hold primary childcare responsibilities and not allowing a request for flexible working may have a disproportionate impact on women.

However, employers need to tread carefully and any policy whereby an employer simply agrees to flexible working requests from women, for example to work part-time, and the request is denied to men, could lead to a direct sex discrimination claim by male employees. This was the case in Walkingshaw v John Martin Group ETS, where a man denied the right to work part-time following his wife’s maternity leave claimed direct discrimination because women in his firm were regularly allowed to work part-time.

Potential discrimination may also occur where the duty to make reasonable adjustments arises in respect of a disabled employee. One of the ways that an employer might be expected to make reasonable adjustments is by altering working hours or allowing home-working. Hence, a refusal by an employer to agree to a flexible working request in these circumstances could give rise to a disability discrimination claim where there would be no defence of ‘justification’.

Overall, employers should consider all flexible working requests fairly, and within the overall context of why the employee has asked for it – as ultimately, a happier worker is a more productive one.

By Kevin Charles, Consulting Barrister at Crossland Employment Solicitors