Flexible working post Covid-19 - sea change or nothing new?

A huge number of employees have been experiencing the “joys” of homeworking over the last four months. While employers have grappled with logistical issues from technology to client confidentiality, employees have had to contend with personal challenges such as home-schooling, juggling work with caring responsibilities and sharing a “home office” with flatmates at the kitchen table.

Despite the downsides, many employees have reported largely positive experiences of homeworking, including freedom from the daily commute and increased productivity levels. Employers have also been more willing to allow flexible working hours to enable employees to fit work around other commitments. Now the official guidance to always work from home wherever possible has been lifted, employers are bracing themselves for a flurry of flexible working requests.

Our recent employer survey found that 25% of respondents had already received requests for permanent homeworking or increased flexibility over working hours. Many people have discovered that flexible working needn’t just mean a non-working day on a Friday but can instead take many different forms – for example, compressed hours, flexitime, homeworking, staggered hours or job-sharing.

The legal position

All employees with at least 26 weeks’ service can make a flexible working request, which their employer must deal with in a “reasonable manner” within three months. The employer can reject a request for one of eight business reasons which include costs, inability to reorganise work and customer-demand issues.

Refusing a flexible working request from an employee who is protected under the Equality Act often brings the risk of a discrimination claim. Despite the right to request flexible working being extended to cover all employees in 2014, rather than just those with caring responsibilities, statistics still show that women are far more likely to make a request to work flexibly.

This means that an employer’s refusal of such a request may be indirect sex discrimination, because women remain more likely to be disadvantaged by that practice. Employers can justify indirect discrimination, but to do so they need to show they have a legitimate business aim for refusing flexible working that is “proportionate” (meaning all alternatives have been properly considered).

Similarly, disabled people could request reasonable adjustments to working hours and arrangements, a refusal of which by the employer might amount to unlawful disability discrimination. In addition, some workers may ask not to work during certain days or times in order to accommodate religious requirements: refusing such a request raises the risk of a claim for indirect religion or belief discrimination.

Faced with multiple requests - and despite Acas guidance to consider requests in the order received - employers may be inclined to consider which requests are likely to result in a discrimination claim when deciding which ones to reject or accept. Businesses should, however, be wary of stereotypes when considering requests. Employment Tribunals (ETs) have in some cases found direct sex discrimination in situations where a request for flexible working by a man was rejected but would have been granted (or at least seriously considered) for a woman.

With changing demographics equalising some of the childcare responsibilities between the sexes, some ET cases have rejected the idea that women are automatically placed at a disadvantage due to childcare commitments by a policy requiring full time work, given the growing numbers of men who also have these commitments and many women continuing to work full time after having children. Nonetheless, ETs are still likely to find such policies indirectly discriminatory unless objectively justified. Recent researchsuggests that during lockdown women remain responsible for the burden of childcare and household chores, with mothers in two-parent households doing on average only a third of the uninterrupted, paid-work hours of fathers.

Responding to requests post lockdown

Many employees who have been working from home, doing “odd hours” or working around caring for children or other dependents, may feel that they have successfully “proven” to their employer that they can work productively from home. Employers seeking a return to normality in terms of office hours and presenteeism will need evidence as to why continuing to allow that extent of flexibility would not work for the business in the long term.

Evidence will differ from business to business but could include client complaints, reductions in productivity or difficulty allocating tasks fairly between office-based and home-based staff. Some employers will find it difficult to demonstrate that any of the eight statutory reasons for refusing flexible working apply in cases where the business has performed well during lockdown. Similarly, employers may struggle to come up with a clear and proportionate justification for refusing flexibility where this will otherwise disadvantage women with childcare needs or disabled employees. Where requests are refused, HR can certainly expect a push-back from employees seeking information about the reasons.

Some businesses may find that remote working was a success with a completely remote workforce, but causes issues when offices reopen. Examples might include the need to schedule virtual meetings alongside physical meetings, the logistics of managing office space, or the problem of a few employees in the office taking the burden of mundane physical tasks. This may be easier to manage if employees split their time between home and the office, as opposed to permanent homeworking.

Consistency of approach is a very important practice for employers to adopt. It is crucial to have a clear, centralised process for dealing with requests, as allowing individual managers to make their own decisions is likely to result in inconsistency. An employer should always consider flexible working requests in the order they are received and approach them positively. If approval cannot be granted, it should explore alternatives or compromises that might work instead. While many employers have accepted temporary working arrangements during the pandemic that might not previously have been allowed (e.g. working while looking after children), permanent changes should not be agreed unless properly considered to be sustainable. 

Trial periods have never formed part of the flexible working legislation, but it is still open to employers to agree a change on that basis. Although coronavirus homeworking might itself be regarded as a “trial period”, a more formal arrangement would still be acceptable – especially if the employer wanted to see the impact on its business after most of its employees have returned to the workplace.

If an employer wishes to implement a trial period, it needs to be specifically on the basis that the arrangement is temporary and not a permanent change. It is important to be clear on the length of the trial period, when it will be reviewed and how success (or failure) will be determined. In some cases, the use of a trial period can help the employer show that it was willing to consider the change and provide evidence as to why the arrangement would not work in the longer term.

Working from abroad

Some employees may wish to relocate to another country and continue remote working from there, but the legal ramifications are not straightforward. There are several issues to consider including tax, social security, immigration and employment implications - leaving aside the problem of different time-zones if an employee asks to relocate to the other side of the world! Employers should not be agreeing to such a request without undertaking careful due diligence beforehand.

Pay cuts

Recent statistics have shown that 20% of people would agree to take a pay cut of up to 7% to be able to continue working remotely. Facebook made headlines during lockdown when it announced that it would allow most of its workforce to work remotely on a permanent basis. The catch being that salaries might be reduced according to an employee’s location - targeting in particular those who have relocated from the expensive Silicon Valley area.

Legally, employers need to agree any change to terms and conditions with employees. Allowing employees to work from home during the pandemic would be classed as a temporary change, and employers have been able to ask employees to return to the office from 1 August (provided the workplace is Covid-19 secure). Agreeing a flexible working request results in a permanent change to terms and conditions, meaning employers can include a pay cut as a condition of agreeing to the change.

This is expected to be a particular issue for London-centric businesses in which employees receive a premium salary due to the high living costs associated with the capital. If employees are no longer living in London, and saving thousands of pounds on commuting costs, should they continue to be paid a London salary? The counter-argument from employees may be that employers with remote workforces are able to downsize and potentially make massive savings on expensive office space. 

It is important to remember that pay cuts for remote working may raise discrimination issues in the same way as refusals of flexible working requests, particularly if the majority of those affected are women with childcare needs and/or disabled employees who require flexible working as a reasonable adjustment. Employers will need to be clear on their justification for both imposing a pay reduction and how it has been calculated, ensuring that it has been applied consistently.

Health and safety

With home-working and partial home-working becoming a permanent arrangement, employers need to remember that their health and safety responsibilities are the same for those working from home as those who are in the office.

A home-work station assessment will need to be carried out for long-term homeworkers. Employers will also need to ensure that any equipment they provide is safe and maintained correctly. While there is no legal requirement for employers to fund purchases of suitable equipment homeworkers (e.g. a desk or ergonomic chair), a clear and consistent homeworking policy should be in place setting out the business’s and employee’s responsibilities. It is important to remember that this assessment should include mental as well as physical wellbeing.

For further guidance on this area, see our article Enforced homeworking during the coronavirus crisis- employers' health and safety obligations.

The future

Even before the pandemic, plans to increase flexible working featured in the Queen’s speech last December with the government proposing a new Employment Bill to make flexible working the default position unless employers have a good reason otherwise.

With so many employees having had the opportunity to practise different ways of working and largely reporting positive experiences, flexible working requests in all their guises are certainly not matters that employers can simply refuse or ignore. Opportunities for flexible working have often been used as a carrot to attract talent and we expect to see an increase in this in future as more and more businesses realise it is an approach that can work for them.