Given that many have been working from home for 12 months it was pertinent timing that this month’s HR Forum, in partnership with recroot, considered the road map towards office working. In particular, our Employment Team focused on how leadership teams might start to shape their policy in relation to remote vs. office working. This article summarises some of the key themes arising from the Forum and provides a re-cap on how employers should deal with flexible working requests.
Office vs. remote working
Some strong themes emerged from a discussion about the benefits of office and remote working, drawing on the experience of the delegates over the past 12 months, namely:
- Office working can offer greater social interaction and connectivity with peers, helping create an environment that promotes creativity and innovation;
- Teams (particularly at a senior level) are often more efficient when working from an office. It also enables them to more fully support junior staff in terms of mentoring and development;
- Flexible working offered an opportunity for an improved work-life balance and ability to focus on wellbeing. However, often lines can become blurred and staff can struggle to take time away from work to look after themselves, putting a greater strain on wellbeing;
- Flexible working potentially offers an opportunity to reduce business overheads (for example, in relation to closing or reducing office space);
- Flexible working can potentially help support talent retention and acquisition – in particular widening the pool of potential applicants, including from other geographical areas. This however needs to be balanced against creating tensions between different teams who might be permitted to work in different ways.
It was clear from the discussion that there is no one size fits all and organisations predicted that they would be moving towards a hybrid model of office and remote working, depending on the nature of the role in question.
As such, many organisations are already formalising and communicating their policy in the hope that this will avoid managers being blindsided by a flurry of formal flexible working requests. As such, organisations are starting to look at:
- Working with senior leadership teams to agree on their approach to flexible / remote working to ensure that this aligns with organisation’s and stakeholder’s interests;
- Considering the legal implications of hybrid working on a more permanent basis (such as changes to contracts);
- Management training and development to be able to deal with flexible working models but also an ability to manage remote teams with diverse working patterns;
- Communication with staff to pre-empt concerns and encourage informal resolutions;
- Wellbeing support for staff in what will no doubt continue to be a challenging time
Process
After identifying that there may be an increase in the number of flexible working requests, the employment team went on to explain the procedure for dealing with a statutory flexible working request. Firstly, they identified that employees with 26 weeks’ continuous service can make a request under the scheme, for any reason (albeit only one formal request can be made in any 12 month period).
An employer has to deal with the application in a ‘reasonable manner’ and within 3 months (although this time frame can be extended by agreement). Employers should have regard and follow the ACAS Code of Practice when dealing with formal requests.
Upon receipt of a flexible working request an employer needs to consider the request and in most cases it will be helpful to discuss the request with the employee (it being good practice to give the employee the right to be accompanied to the meeting).
Whilst some employees may make the request for flexible working as a personal preference, others may make a request on account of e.g. a disability, childcare or religious requirements. It is therefore important for managers to be alive to the potential discrimination risks which may emerge when dealing with flexible working requests.
When dealing with requests, employers should start from a positive perspective of seeking to find a way of accommodating the request, considering how difficulties can be overcome and if in doubt using trial periods. Managers should avoid making personal judgments that the arrangement will not work without exploring alternatives or being able to justify the decision.
If the request is agreed, this will amount to a contractual change and should be recorded in writing. If the request is refused, it must be based on one (or more) of the statutory reasons e.g. ‘detrimental impact on performance’ and it is also good practice to explain the reason to the employee. If a request is refused, where possible, the employer should suggest an alternative option. As with any formal process, the employee should be given the right of appeal against the decision.
If an employee is dissatisfied, a complaint can be pursued in the employment tribunal for breach of the statutory process; however the employment tribunal’s role is limited. If a claim succeeds the employment tribunal will make a declaration and may order the employer to reconsider the request and/or make an award of compensation up to a maximum of 8 weeks’ pay (subject to the statutory cap of a week’s pay, £544 from April 2021). The real concern comes from a risk that the decision is challenged and a discrimination claim is pursued; where the reason for the decision will be analysed and explored in detail and where the stakes are much higher given that damages for discrimination are not subject to the statutory cap and an award for injury to feelings can be made.
The Next Session –Equality and Diversity
In the last quarter of 2020, there was a 25% increase in single claims in the Employment Tribunals when compared with the same period in 2019, with multiple claims up 82% on the same period last year. With the rise in Employment Tribunal claims expected to continue as a result of Covid-19 and the significant impact on the economy, it is essential that employers are alive to the potential for claims, especially in discrimination claims where the scope for claims is wide and the damages potentially uncapped.
At next month’s HR Forum, we will look at some of the key cases in equality law over the last year, covering key topics such as:
- What training does an employer have to provide in order to avoid being liable for rogue acts of discrimination by its staff?
- What action can an employer take when the beliefs of one of its employees conflicts with the rights of others?
- Whether employers could be faced with applications for interim relief (a type of order for continuation of the employment contract) in future claims of discrimination?
We will also look at how damages are awarded in discrimination claims and discuss how HR practitioners play a critical part in protecting businesses against discrimination claims.
If you would like to join us for what is bound to be an interesting and informative session about equality and diversity in the workplace at 10.30am on Wednesday 15 April 2021, please be in touch.
Contact Us
Selene Holden (seleneholden@greene-greene.com ~ 01284 717436), Greg Jones (gregjones@greene-greene.com ~ 01284 717446) or Angharad Ellis Owen (aeo@greene-greene.com ~ 01284 717453).
For more information on the services offered by Greene & Greene Solicitors please visit www.greene-greene.com and follow on Twitter @GreeneGreeneLaw.
