Post pandemic: a right to work from home?

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Gateley Legal

It’s been confirmed that Government advice to work from home is to be removed but as employers open up offices in England again from 19 July 2021 there will inevitably be many who will be reluctant to revert back to the grind of a daily commute.

Faced with having to again attend the office at nine on Monday morning could cause anxiety and fear for some even though it may be welcomed by others. 

The question is whether an employee who has worked from home for over 15 months can now claim that they have a legal right to continue to work from home?

The simple answer is ‘No’. 

Despite headlines last month that suggested employees may be given the right to work from home forever, there is no current or even proposed legal right to work from home. The reports of ‘leaked’ documents disclosing this plan appear to refer to a proposed Government consultation to consider whether flexible working could become the default option putting the onus on the employer to show why it could not be put in place. This was 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 that year. COVID put a hold on that progressing but even if passed it would certainly not give an absolute right for the employee to be able to insist that they should be allowed to work from home.

Flexible working rights

Currently, employees who have 26 weeks service with an employer have a statutory right to make a formal request for flexible work arrangements. One request is permitted in a twelve month period. 

The request may relate 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 

A request to work from home could clearly fall within the scope of a formal flexible work request.

Upon receipt, the employer would be legally obliged to deal with the request in a reasonable manner and to make a decision within three months. 

However, there is no obligation to agree and the request can be refused on any of the following grounds:

  • It would trigger additional costs;
  • It would have a detrimental effect on the ability to meet customer demand;
  • The work can’t be reorganised among existing staff;
  • New staff can’t be recruited;
  • The changes would have a detrimental impact on quality or performance;
  • There would be insufficient amounts of work during the periods the employee proposes to work; or
  • There may be planned structural changes which would clash with the proposed work pattern

There are no grounds to challenge an employer’s decision that is based on the correct facts. That might change if the proposed changes to the flexible working rules are implemented and flexible work becomes the default position but at the present moment, the flexible work provisions do not provide an employee with legal grounds to challenge the employer’s judgement regarding their request. 

Discrimination claims

Whilst the statutory provisions that provide a right to request flexible work might not provide much threat of a claim in the Employment Tribunal the refusal of a request may lead to a claim of unlawful discrimination. 

There are a number of ways in which refusing an employee’s request for home working might be alleged to amount to discrimination. 

Only last month the Employment Appeal Tribunal* confirmed that there remained a childcare disparity between men and women that should be taken into account when assessing whether work arrangements indirectly discriminated against women on the grounds of sex.  

There is also the possibility that working from home could amount to a reasonable adjustment which would benefit a disabled employee. A requirement to attend the workplace might place those with physical or mental health issues at a disadvantage. This would be particularly relevant in the immediate aftermath of the relaxation of workplace restrictions as the number of infections appears to be still rising substantially which might place those with an underlying health condition at a greater risk despite having had the recommended double dose of vaccinations. 

Health & safety

The return to the office will need to be organised to take into account health and safety issues. Whilst restrictions are coming to an end on 19 July the pandemic is still with us.  There is special statutory protection for employees who object to attending the workplace if due to reasonably held belief that they would be in serious and imminent danger. 

It will be important that all the recommended steps are taken to ensure that the office is as safe as it can be in the circumstances. The guidance from the Health and Safety Executive will need to be followed.  Whilst mandatory social distancing rules will come to an end and there will be no legal requirement to wear a mask employers will still need to conduct risk assessments and follow sector specific guidance to mitigate the risk to their workforce, giving particular consideration to employees most at risk of serious illness from COVID-19. Increased ventilation of the workspace, frequent cleaning of common surfaces and providing more space between desks are examples of steps that most offices will be expected to take.

Key points

There is no legal right for an employee to work from home and employers will be entitled to ask staff to return to the office post 19 July 2021 provided that all reasonable steps have been taken to ensure that it is a safe environment. The next few weeks will see many employers start to make arrangements for the return of staff to the office and it should be recognised that this will be a difficult transition for some. 

Discussions should be held with those employees who express concerns about the return to the office. This will primarily be to explore whether there are specific reasons that are making them more anxious, for example, they or a member of their family may have an underlying medical condition or they may be concerned about using public transport at peak times. Discussing their concerns on an individual basis and providing them with reassurance will be the best way to avoid future disputes and will help maintain good employee relations. Consideration should also be given to whether home working can continue or if compromises like the provision of hybrid working which allows the employee to continue to work from home for part of the week and attend the office on a reduced number of days might be possible.  

* Dobson v 1) North Cumbria Integrated Care NHS Foundation Trust 2) Working Families - Intervenor: UKEAT/0220/19/LA(V)

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