Numerous surveys have been conducted providing the overwhelming outcome that it is the preference of many employees’ for a combination of office-based and home-based working going forward. However, there are likely to be some difficult conversations to be had with requests from employees for agile working arrangements going forward. For example:
- Although the role can be undertaken from home, we believe it is less productive, what can we do?
- We have an employee working from home in a similar role, but do not believe that it works for this employee, what can we do?
- My employee is keen to come back to the office, but doesn’t want to have the vaccine, what can we do?
We’ve put together 3 tips for employers grappling with these issues below.
1.Deal with each case in the context of its own circumstances, consider the reason for the request and balance against the interests of the business.
There is no automatic right to flexible working, but any employee with over 26 weeks service has the statutory right to make a request and have it considered in accordance with a set procedure. There are eight potential reasons why the request may be declined. Before the coronavirus pandemic, it was generally thought that a declined, but correctly handled, flexible working request was difficult to challenge. Now it is likely to become more difficult to refuse and a growth in claims is anticipated in this area. Each individual will have their own reasons behind their request which will be worthy of consideration. They may be related to a protected characteristic such as sex or a disability which could leave you open to a discrimination claim, or perhaps health and safety which attracts additional statutory protection. Whatever the reason, there is a balancing exercise to be meaningfully undertaken.
2.Look at what evidence you have to support your stance.
We’ve all essentially had a “free-trial” into homeworking this year without having to go through any contractual amends or statutory procedures. If productivity has genuinely declined, but the workload remained constant, this may be a genuine reason to refuse the request. Of course the opposite may also be true.
3.Be open with your employee about your concerns and look to find a compromise.
Look at the full picture – for example, the impact of mental health and other health and safety considerations may not have been fully considered by the employee in making the request. In the example situation above where an employee wishes to return to work, but freely admits they are not willing to be vaccinated, the situation will need to be carefully managed to balance the potential harm to the employee against the potential harm to the rest of the workforce (who may or may not all have been vaccinated). There are likely to be some very tricky issues to deal with in this domain (in particular in dealing with the sensitive employee health data alongside human rights issues) that will no doubt be worthy of an article or two of their own.
As always, when in doubt, seek advice. We are always happy to have a complimentary chat with any and all confused employers looking to do the right thing for both their business and their staff.
Get in touch
If you would like to discuss any of the issues raised in this article, Melanie Rowe (Senior Associate), would be delighted to hear from you. You can reach Melanie on 07854029922 or you can email her firstname.lastname@example.org.