The media have picked up on a proposed Government consultation which would consider whether flexible working would become the default option unless there are good reasons not to (a proposal originally set out in the Conservative Party’s 2019 election manifesto and subsequently included in the Employment Bill outlined in the Queen’s Speech).
The Guardian reported that:
Downing Street has confirmed the government is considering legislating to make working from home the “default” option by giving employees the right to request it.
Responding to reports that ministers could change the law, Boris Johnson’s official spokesperson said a flexible working taskforce was examining how best to proceed.
“What we’re consulting on is making flexible working a default option unless there are good reasons not to,” they said. That would mirror the approach to other forms of flexible working, such as part-time hours.
However, they emphasised there would be no legal right to work from home, adding that the prime minister still believed there were benefits to being in the office, including collaboration with colleagues.https://www.theguardian.com/business/2021/jun/17/labour-demands-clarity-on-plans-to-make-working-from-home-a-default-right
However The Daily Mail instead went the much more subtle(!) headline of:
Get back to work! Furious bosses condemn Whitehall blueprint to give workers the right to work from home forever and make it ILLEGAL to force them back to the officehttps://www.dailymail.co.uk/news/article-9694403/Shock-plans-work-home-forever-Ministers-propose-make-illegal-forced-office.html
Current Legal Position – Flexible Working
The government has stated on numerous occasions that it intended to consult on flexible working, including in its recent response to the Women and Equalities Committee report on gendered economic impact of COVID-19.
A government advisory group has also recently recommended that flexible working should be the default position.
All we’re seeing here is a consultation, but it is worth looking at what other rights employees have to see how this “working from home right” might pan out.
Since the start of the pandemic, I’ve been suggesting that we could see a change to the Right to Flexible Working requests. In fact, I released a free home working policy 2 weeks prior to national lockdown.
What is Flexible Working?
Flexible working came in to effect in 2014 and allows employees with at least 26 weeks’ continuous employment can make a request for flexible working under the statutory scheme for any reason. If they do so:
- The employee triggers the procedure by making a written request. The employer then has the three-month decision period (which can be extended by agreement) within which to consider the request, discuss it with the employee (if appropriate) and notify the employee of the outcome.
- The employer must deal with the application in a reasonable manner.
- The employer can still only refuse a request for one (or more) of the eight reasons set out in the legislation.
- The employer may treat the request as having been withdrawn by the employee if, without good reason, the employee fails to attend a meeting arranged to discuss their request and a further meeting rearranged for that purpose. Similar provisions apply in respect of a meeting to consider an employee’s appeal against the rejection of a request.
- The employee can complain to a tribunal if the employer:
- fails to deal with their application in a reasonable manner;
- fails to notify them of the decision on their application within the decision period;
- fails to rely on one of the statutory grounds when refusing their application;
- bases its decision on incorrect facts; or
- treats the application as withdrawn when the grounds entitling the employer to do so do not apply.
- Only one request can be made in any 12-month period.
What changes can be requested?
An eligible employee may request a change to their employment terms if the change relates to:
- A change to the hours they work.
- A change to the times when they are required to work.
- A change to the place of work (as between their home and any of the employer’s workplaces).
What reasons can an employer reject flexible working?
The eight reasons for rejecting a request for flexible working are as follows:
- the burden of additional costs;
- detrimental effect on ability to meet customer demand;
- inability to reorganise work among existing staff;
- inability to recruit additional staff;
- detrimental impact on quality;
- detrimental impact on performance;
- insufficiency of work during the periods the employee proposes to work; or
- planned structural changes.
Overlap between flexible working requests and working from home
As you can see, there is currently a clear overlap between flexible working requests and working from home.
One can imagine many employees who have enjoyed working from home yet who are faced with an employer requiring them to go back into the office to be disappointed and looking to make flexible working requests.
I personally think it will be difficult (but not impossible) for an employer to reject a flexible working request to change their place of work from the office to home either part time or full time, particularly if the employee can show there was no detriment to quality or performance during the last 15 months of lockdown and restrictions.
However, it is clear that many employers want people back in the office. Here’s a guide from some of the US’s top tech firms as to what they are saying about WFH and office time:
So back to the Government’s plans – will it be illegal to force employees back into the office?
However, the Government suggestion is that working from home will be a “default” option. I can envisage a situation where, rather than have to make a formal request for flexible working to work from home, an employee will be able to chose to make working from home their default option.
How this may work remains to be seen, but again I can imagine that it would then need to be for an employer to justify why this default option is not possible – in effect, cross referencing against the eight reasons to reject flexible working above.
But however they approach it, one simply cannot see that the Government will make it permanently illegal to force an employee back into the office.
One area that is clearly ripe for a change in the flexible working rules, however, is the ability to make flexible – well, flexible – ad hoc, as it were. Current rules say that once a request to change is approved, it sticks and you can only make one request every 12 months, meaning undoing it or making further changes is not strictly possible. It would be entirely reasonable, albeit perhaps more burdensome to manage for employers, to allow an employee to request ad hoc flexible working, where people could change their working hours or location as and when they please.
I’d love to hear your views on this. Let me know in the comments below, or by completing my quick 1 minute survey here: https://forms.office.com/r/y8yJksCAc2