One significant change heralded by widespread lockdown was the increase in remote working across almost all sectors. Initially a necessity for many businesses if they wanted to remain operational, remote and hybrid working has been widely embraced by employees – around 40% of the UK workforce now report working at least some days from home (compared to a figure of around 12% reported prior to the Covid-19 pandemic). Is the tide turning? There have been numerous reports in recent months that employers have grown tired of the work from home model and are increasingly requiring employees to return to the office. Despite widely publicised decisions by some employers, statistics gathered by the Chartered Institute of Personal Development (CIPD), show that employer support for hybrid working remains strong. However, a significant proportion of employers who already mandate a set number of days in the office intend to increase the number of mandated office days in the next 12 months. What are your options? What are your options if your employer seeks to require you to return to the office full time (or for an increased number of mandated days) and you do not wish to comply? 1) Check your contract of employment If your contract of employment explicitly provides for permanent remote or hybrid working, then an employer’s attempt to make changes to these terms could amount to a breach of contract. In these circumstances it will generally be more difficult for an employer to make changes without generating a potential claim for constructive unfair dismissal (unless the employer obtains your agreement to the change). However, it is important to note that you can only bring a claim for constructive unfair dismissal if you have more than 2 years’ continuous service with your employer. 2) Consider a flexible working request A tangible way employees can resist a return to office mandate is by making a request to work from home – either full time or, perhaps, just a day or two less than their employer requires. Employees have a statutory right to request flexible working. The law does not specifically relate to homeworking, but remote working is one of the flexible working arrangements that can be applied for. If making a flexible working request under the statutory framework, you should inform your employer that you are doing so. Many employers will have a flexible working policy in place and if your employer has a policy of this type you should endeavour to follow it when making your application. Employers can only say no to a flexible working request on the basis of one (or more) of eight permitted business reasons. Employers also need to meet the statutory requirements and follow the relevant ACAS Code. Employers can legitimately refuse statutory requests for remote working, but only if they have given proper consideration to the request and a clear rationale in support of their decision. As a result, a flexible working request is not a guarantee that remote or hybrid working will be granted, but it is a useful tool to utilise in many instances. In cases where a request is rejected, employees have a right to bring an employment tribunal claim under the statutory flexible working framework if certain criteria are met. Significantly, compensation for not complying with the statutory flexible working regime is limited to a maximum of just eight weeks’ pay. 3) Are you a disabled person within the meaning of the Equality Act 2010? Employers have a duty to make reasonable adjustments for employees who qualify as disabled under the Equality Act 2010. It is not uncommon for occupational health practitioners to recommend remote or hybrid working as a (temporary or permanent) reasonable adjustment. Making reasonable adjustments will often require an employer to make exceptions to their normal office attendance policy. The duty to make reasonable adjustments involves going above and beyond what an employer would do for non-disabled employees. Accordingly, this can be a worthwhile consideration in appropriate circumstances. 4) Are caring responsibilities a factor? Any policy (such as a requirement that all employees attend the office full time) which disadvantages people with childcare responsibilities will arguably have a disproportionate impact on women, who still shoulder most of the childcare responsibilities in the UK. It is also arguable that women shoulder most of the care for elderly and/or disabled adults. It is possible therefore that such an employer’s in person attendance policy could amount to indirect discrimination on the grounds of sex. If a flexible working request is being made due to caring responsibilities, it is advisable to set this out in the request itself as an employer may be more inclined to grant the request in these circumstances. How can Morr & Co help? If you would like to discuss your situation with an experienced solicitor, our experienced Employment team will be able to answer any questions you may have. You can contact them by email info@morrlaw.com or by calling 0333 038 9100. Disclaimer Although correct at the time of publication, the contents of this newsletter/blog are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Please contact us for the latest legal position. Authored by Francesca Wild Senior Associate Solicitor Message Tags Insights Perspectives On this page Related Stories Legal implications of declining flexible working requests Flexible working reforms & new duty for prevention of sexual harassment Employment Rights Bill – latest updates View more Contact our team today to find out more get in touch
