Working from home - Flexible Working Application

Many employees will have been working from home during the Covid-19 pandemic and given the recent Government announcements removing the work from home requirement and guidance (in England) some may not be looking forward to returning to the workplace. 

Some may have to work in crowded offices and endure long commutes on crowded trains which they are concerned poses an increased risk of exposure to Covid-19 (whether they have been vaccinated or not). Some may not wish to return to their workplace. 

If the employer insists on the employee returning to their place of work, what can they do?

The good news is any employee who has been employed for 26 weeks can make a Flexible Working Application (FWA). The employer can only refuse that application on eight specific grounds set out below.

Where an employee has successfully carried out their work duties from home during the pandemic it may be difficult for an employer to reasonably refuse a FWA on one or more of the grounds.

To make a valid FWA an employee must:

1. Make it in writing.
2. Date it.
3. State that it is an application made under the statutory procedure.
4. Specify the change they are seeking and when they wish the change to take effect.
5. Explain what effect, if any, they think the change would have on the employer and how any such effect could be dealt with.
6. State whether they have previously made an application to the employer and, if so, when.

If making a FWA involves childcare reasons or perhaps connected with a disability this should also be set out.

The employer can only refuse a request on one or more of the following grounds:

• the burden of additional costs;
• detrimental effect on ability to meet customer demand;
• inability to reorganise work among existing staff;
• inability to recruit additional staff;
• detrimental impact on quality;
• detrimental impact on performance;
• insufficiency of work during the periods the employee proposes to work; or
• planned structural changes.

Employees making requests should think about these grounds and any suggestions on how they may avoid the potential impact their request might have.

Trial Period

Whilst the legislation does not provide for or require an employer to have a trial period, the Acas Guide for flexible working requests suggests that an employer may want to use a trial period as an alternative to rejecting a request especially if it is unsure whether the change is sustainable in the business or uncertain about the possible impact on other employees'.

Where the employee has been working from home for a period of time it might be argued that this was akin to a trial period and if this has been done without having an adverse impact on the employer’s business it might be difficult for employers to reasonably refuse a FWA.

Tribunal Claim

Employees have the right to appeal if the FWA is refused and, if that is refused, an employee can make a Tribunal claim. The scope of a claim is limited. 

A Tribunal will not question the commercial rationale or business reasons for a refusal a FWR nor substitute its own decision as to whether the request should have been granted but it is entitled to examine and decide on the factual correctness of an employer's asserted ground for refusing a flexible working request. 

The EAT has said that as an employee is entitled to present a complaint that a decision to reject their application for flexible working was based on incorrect facts and the tribunal is entitled to:

• ‘enquire into what would have been the effect of granting the application. 
• Could it have been coped with without disruption? 
• What did other staff feel about it? 
• Could they make up the time? 
• And matters of that type.”

If an employee has a protected characteristic, they might be able to assert the refusal was discriminatory in some way. This is sometimes overlooked by employers.

Remedies

If an employee wins the claim, the Tribunal must make a declaration to that effect and may make an order for reconsideration of the request and/or an award of compensation up to a maximum of eight weeks' pay.

The eight weeks’ pay may not be a great deal of compensation but when a Tribunal orders the employer to reconsider its decision it is likely the employer would grant the FWA.

The award could be greater and include an injury to feelings award if the employer is found to have discriminated.

https://www.acas.org.uk/making-a-flexible-working-request/how-to-make-a-flexible-working-request

https://www.acas.org.uk/acas-code-of-practice-on-flexible-working-requests

https://www.acas.org.uk/sites/default/files/2021-03/flexible-working-and-work-life-balance-guide.pdf