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26 August 2020
The COVID-19 pandemic and resulting lockdowns have caused millions to work from home for the first time – an experience likely to cause a surge in requests for flexible working arrangements once most employees are asked to return to the workplace. This article considers the legal position and the practicalities for employers in dealing with flexible-working requests.
A huge number of employees have been experiencing the 'joys' of homeworking over the past four months. While employers have grappled with logistical issues ranging from technology to client confidentiality, employees have had to contend with personal challenges such as:
Despite the downsides, many employees have reported largely positive experiences of homeworking, including freedom from the daily commute and increased productivity levels. Employers have also been more willing to allow flexible working hours to enable employees to fit work around other commitments. Now that the official guidance to always work from home wherever possible has been lifted, employers are bracing themselves for a flurry of flexible-working requests.
Some employers have already received requests for permanent homeworking or increased flexibility over working hours. Many people have discovered that flexible working need not be limited to a non-working day on a Friday and can instead take many forms – for example:
All employees with at least 26 weeks' service can make a flexible-working request, which their employer must deal with in a reasonable manner within three months. Employers can reject a request for one of eight business reasons which include costs, inability to reorganise work and customer-demand issues.
Refusing a flexible-working request from an employee who is protected under the Equality Act often brings the risk of a discrimination claim. Despite the right to request flexible working being extended to cover all employees in 2014, rather than just those with caring responsibilities, statistics still show that women are far more likely to make a request to work flexibly.
This means that employers' refusal of such a request may be indirect sex discrimination, because women remain more likely to be disadvantaged by that practice. Employers can justify indirect discrimination, but must show that they have a legitimate business aim for refusing flexible working that is 'proportionate' (ie, all alternatives have been properly considered).
Similarly, disabled people could request reasonable adjustments to working hours and arrangements, a refusal of which by employers might amount to unlawful disability discrimination. In addition, some workers may ask not to work during certain days or times in order to accommodate religious requirements; refusing such a request raises the risk of a claim for indirect religion or belief discrimination.
Faced with multiple requests – and despite Acas guidance to consider requests in the order received – employers may be inclined to consider which requests are likely to result in a discrimination claim when deciding which ones to reject or accept. However, businesses should be wary of stereotypes when considering requests. Employment tribunals have in some cases found direct sex discrimination in situations where a request for flexible working by a man was rejected but would have been granted (or at least seriously considered) for a woman.
With changing demographics equalising some of the childcare responsibilities between the sexes, some employment tribunal cases have rejected the idea that women are automatically placed at a disadvantage due to childcare commitments by a policy requiring full-time work, given the growing number of men who also have these commitments and many women continuing to work full time after having children. Nonetheless, employment tribunals are still likely to find such policies indirectly discriminatory unless objectively justified. Recent research suggests that during lockdown, women remained responsible for the burden of childcare and household chores, with mothers in two-parent households doing on average only one-third of the uninterrupted, paid-work hours of fathers.
Many employees who have been working from home, doing odd hours or working around caring for children or other dependants may feel that they have successfully proven to their employer that they can work productively from home. Employers seeking a return to normality in terms of office hours and presenteeism will need evidence as to why continuing to allow that extent of flexibility would not work for the business in the long term.
Evidence will differ from business to business but could include:
Some employers will find it difficult to demonstrate that any of the eight statutory reasons for refusing flexible working apply in cases where the business has performed well during lockdown. Similarly, employers may struggle to come up with a clear and proportionate justification for refusing flexibility where this will otherwise disadvantage women with childcare needs or disabled employees. Where requests are refused, HR can expect pushback from employees seeking information about the reasons.
Some businesses may find that remote working was a success with a completely remote workforce, but causes issues when workplaces reopen. Examples might include:
This may be easier to manage if employees split their time between home and the workplace, as opposed to permanent homeworking.
Consistency of approach is an important practice for employers to adopt. It is crucial to have a clear, centralised process for dealing with requests, as allowing individual managers to make their own decisions is likely to result in inconsistency. Employers should always consider flexible-working requests in the order that they are received and approach them positively. If approval cannot be granted, employers should explore alternatives or compromises that might work instead. While many employers have accepted temporary working arrangements during the pandemic that might not previously have been allowed (eg, working while looking after children), permanent changes should not be agreed unless properly considered to be sustainable.
Trial periods have never formed part of the flexible-working legislation, but it is still open to employers to agree a change on that basis. Although COVID-19 homeworking might itself be regarded as a trial period, a more formal arrangement would still be acceptable – especially if the employer wanted to see the impact on its business after most of its employees have returned to the workplace.
If employers wish to implement a trial period, this must be specifically on the basis that the arrangement is temporary and not a permanent change. It is important to be clear on the length of the trial period, when it will be reviewed and how success (or failure) will be determined. In some cases, the use of a trial period can help employers to show that they were willing to consider the change and provide evidence as to why the arrangement would not work in the longer term.
Some employees may wish to relocate to another country and continue remote working from there, but the legal ramifications are not straightforward (for further details please see "Home and away – when working from home means working abroad"). There are several issues to consider including tax, social security, immigration and employment implications – leaving aside the problem of different time zones if an employee asks to relocate to the other side of the world. Employers should not agree to such a request without undertaking careful due diligence beforehand.
Recent statistics have shown that 20% of people would agree to take a pay cut of up to 7% to be able to continue working remotely. Facebook made headlines during lockdown when it announced that it would allow most of its workforce to work remotely on a permanent basis, the catch being that salaries might be reduced according to an employee's location – targeting in particular those who have relocated from the expensive Silicon Valley area.
Legally, employers must agree any change to terms and conditions with employees. Allowing employees to work from home during the pandemic would be classed as a temporary change, and employers have been able to ask employees to return to the workplace from 1 August 2020 (provided that the workplace is COVID-19 secure). Agreeing a flexible-working request results in a permanent change to terms and conditions, meaning that employers can include a pay cut as a condition of agreeing to the change.
This is expected to be a particular issue for London-centric businesses in which employees receive a premium salary due to the high living costs associated with the capital. If employees are no longer living in London, and saving thousands of pounds on commuting costs, should they continue to be paid a London salary? The counterargument from employees may be that employers with remote workforces are able to downsize and potentially make massive savings on expensive workplace space.
Pay cuts for remote working may raise discrimination issues in the same way as refusals of flexible-working requests, particularly if the majority of those affected are women with childcare needs or disabled employees who require flexible working as a reasonable adjustment. Employers must be clear on their justification for both imposing a pay reduction and how it has been calculated, ensuring that it has been applied consistently.
With homeworking and partial homeworking becoming a permanent arrangement, employers must remember that their health and safety responsibilities are the same for those working from home as those who are in the workplace.
A home-work station assessment must be carried out for long-term homeworkers. Employers must also ensure that any equipment that they provide is safe and maintained correctly. While there is no legal requirement for employers to fund purchases of suitable equipment homeworkers (eg, a desk or ergonomic chair), a clear and consistent homeworking policy should be in place setting out the business's and employees' responsibilities. This assessment should include mental as well as physical wellbeing.(1)
Even before the pandemic, plans to increase flexible working featured in the Queen's December 2019 speech, with the government proposing a new Employment Bill to make flexible working the default position unless employers have a good reason otherwise (for further details please see "2019 in employment law").
With so many employees having had the opportunity to practise different ways of working and largely reporting positive experiences, flexible-working requests in all their guises are certainly not matters that employers can simply refuse or ignore. Opportunities for flexible working have often been used as a carrot to attract talent and this will likely increase in future as more businesses realise that it is an approach that can work for them.
For further information on this topic please contact Helen Coombes or Jessica Bowman at Lewis Silkin by telephone (+44 20 7074 8000) or email (firstname.lastname@example.org or email@example.com). The Lewis Silkin website can be accessed at www.lewissilkin.com.
(1) For further information please see "Enforced homeworking during the coronavirus crisis – employers' health and safety obligations".
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