Just how flexible do employers need to be? - Euan Bruce

In recent weeks, we heard Lord Alan Sugar’s assessment of employees working from home as a “long-lasting negative effect of the pandemic”. Whilst acknowledging he might be old-fashioned, he called the situation a “total joke” and suggested there was “no way people were as productive working from home”.

Lord Sugar insists staff are less productive when they work from home

Lord Sugar’s comments and the discussion they have prompted show the widely diverging opinions that have developed in relation to working from home. After two years of varying degrees of lockdown, some employers have wholeheartedly embraced it; others have been keen to see employees return to their desks as soon as possible. For employees there is a similarly broad spectrum. Some relish saving time and money on commuting, others prefer the structure and routine of an office environment - with a multitude of views in between.

From a legal perspective, it’s important to recognise that, despite the change in attitudes during the pandemic, the employer still has the right to determine what it requires from its employees. If that includes working in the office as opposed to at home, that’s up to the employer. Supervision is undoubtedly easier in person, whilst many employers praise the virtues of staff learning from each other by osmosis and having a more positive culture by people working together in person. Whatever the employer’s reasoning, it’s up to them to make the decision.

Many employers are proactively implementing policies to govern their employees’ ability to work more flexibly. For those organisations who have not taken that proactive step, employees are entitled to make flexible working requests. Such requests can cover home working as well as any other adjustment to an employee’s role. Once a formal request is made, an employer is under a legal obligation to consider the request and must go through an assessment process, including offering the right of appeal, which must be dealt with within three months of the date the request is submitted.

Euan Bruce is a senior lawyer in DLA Piper’s Employment practice

If the employer wishes to reject the request, they can only do so for a limited number of reasons. Whilst limited, these are sufficiently broad to cover most situations where an employer might want to reasonably refuse a request. In considering requests for home-working, any impact on either quality, performance or ability to meet customer demands are likely to be the most pertinent.

Importantly the legal test is whether or not the employer considers that one of the prescribed reasons for refusal applies. The employee may disagree with the assessment, but provided the employer has approached the issue reasonably and can provide reasoning and evidence to support their conclusion, it’s very difficult for an employee to challenge the conclusion. As a result, provided the employer follows a fair process and gives appropriate consideration to the request, the legal risk is low.

There will be circumstances where the risk is increased, notably where there is a question of potential discrimination. This normally arises in respect of a flexible working request made by a new mother, or an employee who wishes to adjust their role to accommodate a disability. In those circumstances, employers are held to a higher standard and must be able to show refusal of the request is objectively justified. In doing so the employer must show the refusal is both based on a legitimate aim and that, in pursuing the aim, they are acting in a proportionate manner.

Given the numbers of employees seeking to adjust working arrangements after getting the taste for a more flexible approach during lockdown, the real risk for employers may be a question of consistency. Whilst many managers will be familiar with the requirements of a flexible working request, many will not, and some may even share the “old-fashioned” mindset of Lord Sugar that people should just be in the office. Managers having the knowledge and confidence to deal with matters in a consistent manner across a workforce is likely to represent the greatest challenge. A lack of consistency is likely to exacerbate the risk of discrimination claims arising.

Nonetheless, if flexible working requests are managed properly, employers should be confident in concluding that they know best what is needed for their business. However, whilst the legal risk is fairly low, some employees’ expectations have clearly changed, and they are entitled to vote with their feet by looking elsewhere for flexibility.

Euan Bruce is a senior lawyer in DLA Piper’s Employment practice