Considerations for employers with employees returning to the office

read time: 3 mins
18.05.22

Further to our article on Hybrid Working, a couple of months have passed and further considerations must be taken into account with an increase in staff returning to the office. Even with the removal of government restrictions, there remains a need for employers to consider implementing hybrid working and flexible working arrangements. In a world where staff have become used to greater flexibility around their working patterns, a more rigid approach may lead to low morale and workplace grievances.

Businesses will undoubtedly experience more applications for flexible working. Those with young families in particular have demonstrated the ability to work flexibly during the pandemic, and they may want to retain the ability to work around core hours and deviate from a 9 - 5 day.

What should you do when met with a flexible working request?

An employee may have the right to request flexible working arrangements under Section 80 Employment Rights Act and employers should be aware of this and consider any requests reasonably. Employees also have this right under The Flexible Working Regulations 2014. Failure to consider reasonable requests may result in an award for financial compensation, which is currently 8 weeks’ pay for the employee.

An employee will need to show that they have at least 26 weeks’ continuous service in order to make such a request. A request under Section 80 will need to:

  • state that it is an application to request contract variation under this section;
  • specify the change applied for and the date on which the proposed change should become effective, and;
  • state what effect (if any) the employee thinks the change could have on the employer and how (in their opinion) they feel this could be dealt with.

There is no rigid procedure an employer must follow, they need only deal with the request in a reasonable manner and within a 3-month time period. If the employer refuses the request, they must write to the employee giving the business reasons for the refusal. Employers are recommended to consider the relevant ACAS guidance which can be accessed here.

What can happen if a request is not successful?

In the event businesses do not act consistently with these requests, there could be issues in respect to discrimination – particularly sex and disability discrimination. This is due to the fact that people with these characteristics may require flexible working arrangements to perform their normal duties at work. Employees may also feel that they are put at a disadvantage, or treated unfavourably, due to their sex or disability by having to attend the office on a permanent basis. Such requests could be of fundamental importance, and therefore not permitting reasonable adjustments of this kind could lead to a claim for discrimination.

There is also a risk of potential claims for constructive unfair dismissal as a result of a breach of the implied duty of trust and confidence. This occurs where an employee has no other option but to resign as a result of actions taken by the employer which destroys the relationship between one another. This may occur if reasonable requests for flexible working are denied without good reason.

What is next in this space?

There are currently government proposals to reform The Flexible Working Time Regulations to make flexible working the default position. Employers are recommended to consider making flexible working their default position if this is appropriate to the business needs.

Businesses will need to find a balance between staff who wish to work from home permanently against those who wish to be in the office. It is recommended that employers put in place a policy and procedure in respect to hybrid working and any potential flexible working arrangements, and they may also wish to make hybrid working the default position (if appropriate for the business).

For more information on this article, please contact Hayley Marles or Amy Grant from our Employment team.

 

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