As employees return to work following the government’s relaxation of the pandemic-related rules, we take a look at whether there is a right to flexible working and what to expect from the future.
On 19 July 2021, the government lifted the restrictions requiring people to work at home where possible, recommending a gradual return to the office.
Employers were told they could decide whether to require their employees to go in to the workplace and how any return would be managed.
Government health and safety guidelines should be followed, with recommendations such as ventilating buildings adequately, extra cleaning, the use of screens and regular testing suggested.
Who is flexible working available to?
According to a number of studies, a substantial proportion of employees would like to retain homeworking for all or at least part of the week.
The right exists for employees who have worked for their employer for 26 weeks or more to request flexible working. This could be a combination of days at home and days at the office each week or potentially exclusively working from home. It also includes other arrangements such as part-time work, hours worked over fewer days, flexible start and finish times and job sharing.
If formally asked to allow flexible working, an employer has to consider whether it is possible and deal with the request in a reasonable manner. A response should be made to the employee within three months of the request being made.
Can you refuse a flexible working request?
An employer is entitled to turn down the request for flexible working arrangements on a number of grounds, including the following:
- A negative impact on performance;
- A negative impact on quality of work;
- Inability to meet customer demand;
- Extra costs;
- Inability to organise cover for the work;
- Insufficient work in the periods that the employee wants to work;
- New staff cannot be recruited;
- The structure of the business will be changing.
If the request for flexible working is refused, the employee cannot ask again for twelve months.
Returning to Work: Health & Safety Considerations
Employers will need to consider how to make the workplace safe, with particular consideration for vulnerable employees. If they are classed as disabled, there is a legal requirement to make reasonable adjustments.
Vulnerable workers could be given permission to work at home or enhanced protection put in place for them in the workplace, such as screens, minimising the group of people they have contact with and social distancing. If they use public transport, they could be given different start and finish times to avoid crowds.
Employers have been advised to phase in new working patterns and prioritise statutory health and safety requirements. Guidelines have been issued appropriate to six different sectors, which should be followed and risk assessments also carried out.
Can you force employees to return to work?
Subject to health and safety considerations, in particular in respect of vulnerable workers, employers can insist on a return to work as restrictions are lifted and where the employee’s contract stipulates the workplace as their place of work. Where an employee refuses, the employer could commence formal disciplinary proceedings where it considers the refusal to be unreasonable.
How to safely manage the return to work?
The future is likely to see a shift to more flexible working patterns, particularly where homeworking has been shown to be effective.
Employers will need to consider whether their technology and equipment need upgrading and whether changes will be needed to the way in which training and supervision are handled.
Periods of change can risk misunderstandings and dissatisfaction if they are not carefully managed. Employers will need to keep lines of communication open and make sure they consider employee requests carefully.
For more information about considerations for employers, see Continuing or ending homeworking.
Contact us
At Witan Solicitors, we can advise you on workplace issues, including implementing flexible working and how to reject a request in accordance with employment legislation.
If you are dealing with difficulties surrounding a return to the workplace, get in touch with our employment solicitor in Birmingham, London and Northampton by emailing us at info@witansolicitors.co.uk or filling in our contact form.
