By Dan Peyton and Adam Penman at McGuireWoods London LLP.

 

Background

COVID-19 has, since the Government’s instruction for people to work from home wherever possible on 16 March 2020, heralded an acceleration of an existing, albeit gradual move towards greater flexibility in the workplace and perhaps a greater recognition that flexible working can yield tangible benefits for both employers and employees.

The right to request flexible working arrangement has been a statutory right from 2014. Employees with at least 26 weeks’ continuous employment can request changes to the hours they work, to vary their work patterns and change their place of work, including a request for hybrid office-homeworking.

Now, since 29 March 2021, it is no longer a criminal offence to leave home to work even if it is possible for workers to operate from home. Current guidance does state however that office workers should continue to work from home, until at least Step 4 of the Government’s ‘Roadmap Out of Lockdown’ (unless such there are adverse impacts on a worker’s mental or physical health etc. attributed to working from home).

Post-pandemic

Both employers and employees may now be anxious about preparing for a post-COVID-19 return to work. Both parties may be looking to harness the advantages associated with working from home and to mitigate any drawbacks. Any thought process leading to a decision on the post-COVID-19 work arrangements is bound to be almost as important as the outcome itself. A full return to “normal” office based working however would imply that pre-COVID working practices worked well and need not be adapted.

Requests from employees exercising their statutory right to request flexible working and employers must handle any requests in a “reasonable” manner, which includes both a reasonable process in responding to an employee and having reasonable ground(s), within parameters of the statutory grounds, for denying a request. Employers should deal with requests within three months of receipt and meet with the requestor to discuss their application and any appeal.

Grounds to reject a request

The impact of COVID-19 on such requests and employer responses is and will be on what qualifies as a “good business reason” for denying a request. The impact of COVID-19 will perhaps be significant as the past year may have disproved (or proved) previously referenced business reasons as being “good reasons”. There are eight specific grounds on which an employer can decline such a request, under the umbrella of “good business reason”: (1) generating additional costs; (2) detrimental impact on ability to meet customer demand; (3) inability to reorganize work amongst existing staff; (4) inability to recruit additional staff; (5) detrimental impact on quality; (6) detrimental impact on performance; (7) insufficient work during particular periods to accommodate request; and (8) planned structural changes.

There is a risk that employers may culturally be resistant to depart from the pre-crisis status quo without a valid reason or reasonable procedure to approach the request, which could give rise to an employment tribunal challenge, including potential costly claims for discrimination for employees with protected characteristics. An employment tribunal may test the application of an employer’s business reason(s) to reject a request, which could potentially cause some commercial embarrassment if employers are forced to defend their logic in a public forum.

Furthermore, the decision making process in respect of an employee’s request may be subject to an employee’s data subject access request and therefore disclosable to the employee, which could inform how that employee then proceeds to challenge any denial, including preparing for a claim against their employer.

Quality & performance

The majority of the statutory grounds to reject flexible working requests can be related to quantifiable impacts. For example, an employer could clearly evidence that an employee’s request would result in increased costs by a certain margin or that additional staff would be required to fill a void created by accommodating the request.

However, there are two statutory grounds in particular that, in many cases, involve a greater degree of subjectivity, being impact on quality and performance. If a business has operated well whilst employees have been working from home, it may be very difficult to demonstrate that any continued, or partial, work from home arrangement, would have an adverse impact on such benchmarks; conversely, in many cases perhaps, quality and performance have even improved, with employees feeling perhaps more in control of their schedules and output, being more engaged and/or being more responsive to business needs out of hours. Of course, impact on quality and performance will vary depending on specific roles, tasks, team and individual engagement.

Business culture

Employers may be inclined to reject applications on the grounds that flexi-working is simply incompatible with their business’ values and culture; however, unless detrimental impact on culture can be tangibly linked to one or more statutory grounds to decline such requests (most likely perhaps on ‘impact on quality’) ‘culture’ is unlikely itself to be a standalone valid reason to decline the request.

Employers with genuine concerns about the impact of flexi-working on the culture of their business (for example, those businesses with thrive on collaborative creative processes), should, initiate an investigation into current work from home arrangements and asses any detrimental impact on quality and performance on an ongoing basis.

The break from the office has generally worked well and accordingly it is incumbent on employers to at least consider alternatives to full time office working and document their thought process. Prudent employers should be mindful of documenting their experiences in real time in order to inform future assessments on working from home and to document any problems that have arisen so as to evidence any adverse impacts on a business. Employers are more likely to fulfil their obligation to respond to flexible working requests “reasonably” if they have fairly and accurately captured the employee experience and recorded any specific examples of detrimental impact to support any rejection of such requests. For example, in employee appraisals, if an employee has been able to improve their performance comparative to periods working in the office, this would limit the employer’s capacity to challenge a request on grounds of impact on quality or performance. However, where an employee has performed generally well, but their capacity to perform to an even better, but reasonable, standard, has been inhibited by the practical limitations associated with home working through no fault of the employee, this should be explicitly recorded as a caveat to any positive appraisal.

Flexible working requests should be examined on a case by case basis; this does not extend to reviewing that employee’s quality of output or performance in a vacuum, as an employer should review the application and impact reasonably given all of the circumstances. A reasonable approach to assessing the merits of a request for flexible working may also include a trial period to test the arrangement in practice and the likely impact of COVID-19 is that the reasonableness of trial periods perhaps diminishes as employers will know or ought to know the impact, having over a year to evaluate.

Discrimination

Working from home requests should be processed so as not to unlawfully discriminate against an employee. For example, allowing primary carers the opportunity to work from home and not others, may be indirectly discriminatory against men, as women disproportionately make up these roles (although such discrimination may be justified if it is a proportionate means to achieve a legitimate aim).

Conversely, moving towards home working may in fact enable more equality and diversity in the workplace. For example, women are disproportionately less well represented in senior and leadership positions, in part because of disproportionate burden falling on them in respect of child care. Removing office-related working disadvantages such as a lengthy and expensive commute (people with children are more likely to live outside of urban centers) or allowing work to be done beyond or around the nine to five working day, helps to remove barriers for women with childcare responsibilities and facilitate their retention in demanding jobs. Employers will need to adopt a consistent approach to future home working practices and be clear on the parameters of what is acceptable.

It is widely expected that employers will receive an uplift in flexible working requests following the worst of COVID-19. It remains to be seen how employment tribunals will approach claims relating to the handling of flexible working requests, including how interventionist tribunals are prepared to be in testing more subjective grounds used by employers to reject requests such as impact on quality or performance. It may be difficult for employees to otherwise challenge employer decisions if a reasonable procedure has been adhered to. However, one thing that is likely, in a very uncertain employment landscape, is that flexible working is to be entrenched by market forces in any event, as employees may react with their feet and move to employers which offer more competitive flexible arrangements.

For more information about statutory requests for flexible working, please contact Dan Peyton and Adam Penman at McGuireWoods London LLP.