HCR Law Events

27 May 2020

The future of flexible home working after Covid-19

We are told many things will be temporary during the coronavirus pandemic, but one thing that may never be the same from an employment law perspective is flexible home working. Whilst home working may have been routine in some organisations before lockdown, there is almost a sense of an imposed national trial period for thousands of others. But what does this mean for flexible working requests when things go back to ‘normal’?

The current position

Whilst Zoom and Skype may be becoming the mode of virtually meeting friends and participating in many a quiz during the Covid-19 lockdown, it has also served as an essential tool for many employers as a means of maintaining internal communications and ‘meeting’ clients in the only way possible. It has certainly been a learning curve for many people, but during lockdown, vast numbers of people have acquired new skills, leaving them easily connected without being present in the same workspace.

What exactly is the current position in relation to requesting flexible working?

The right to request flexible working is a statutory right that is available to employees with 26 weeks’ continuous employment. An employee can only make one request under the statutory scheme in any 12 month period.

An employee can request:

  • A change to the hours they work
  • A change to the times they are required to work
  • A change to the place of work (crucially including working from home).

The employer dealing with the request then has an obligation to do so in a reasonable manner and to notify the employee of the decision within three months of the request being made.

There are eight potential grounds for refusal set out in the legislation. These are:

  • 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
  • Planned structural changes.

The future of home working

It is undoubtedly the case that many employees who had not previously considered home working would now seriously consider requesting more of it. That is especially the case in circumstances where going to the employer’s premises might be a difficult or unattractive prospect, given the continuing risk of infection.

If home working has worked for an employee and has had no obvious adverse impact on their productivity or effectiveness, it would be hard for an employer to argue with confidence that home working in the longer term could not work for one of those eight statutory reasons.

Even if working at home full time might present some problems for an employer, it may well become the case that travelling to work will be the exception for some employees, rather than the rule. Indeed, many employers are now wondering if they really need to have all of their employees on-site, if the enforced experience of lockdown has shown that offices, in particular, might be an unnecessary expense or may at least need to be shrunk to fit the new home working norm.

In the circumstances, the current crisis is likely to lead to a great many employers and employees alike seeking to move towards a home working future.

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About the Author
Michael Stokes, Partner, Head of Employment and Immigration Team

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