November 5, 2021

An employee who wishes to establish a contractual entitlement to homeworking or hybrid working arrangements can make a formal request for a change to his or her contract under the flexible working request procedure set out in Ss.80F–80I ERA and the Flexible Working Regulations 2014 SI 2014/1398. Whereas previously the procedure was only open to parents and carers, the right is now open, following amendments made in June 2014, to all employees with at least 26 weeks’ continuous employment, regardless of the reason for the request.

Under S.80F(1), a statutory request for a contract variation may relate to the terms governing the place of work, so the flexible working request procedure is clearly apt to cover a move to working wholly or partly at home. The statutory procedure is a ‘right to request’ and does not confer any entitlement on the employee to have his or her proposed working arrangements agreed by the employer (the most a tribunal can do in terms of enforcement is award compensation or order the employer
to consider the request afresh). The employer is merely required to deal with the application in a ‘reasonable manner’ and to notify the employee of the decision on the application, including any appeal, within three months of the date of the application – S.80G(1)(a).

Furthermore, the employer can only refuse the request for a valid business reason, namely: 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 change – S.80G(1)(b). In considering the application, the employer must ensure that its decision is not based on ‘incorrect facts’ – S.80H(1)(b).

The issue of additional cost may be relevant if specialist equipment isneeded for homeworking; the issue of customer demand might be relevant if the business’s customers insist on face-to-face meetings or onsite presence; and the employer might argue that homeworking has an impact on quality of work and/or employees’ performance. However, when so many employers have had to take steps to facilitate remote working during the pandemic and have found ways of making these arrangements work well, it may be more difficult for employers to argue that there are organisational obstacles to homeworking or hybrid working arrangements.

One concern from an employer’s perspective may be that, if it accepts a request and it transpires that the employee does not work well from home, it will be stuck with the arrangement since the employee’s contract will have been permanently modified. Importantly, however, nothing in the legislation requires employers to approach employees’ requests on a take-it-or-leave-it basis. Indeed, the Acas Statutory Code of Practice, ‘Handling in a reasonable manner requests to work flexibly’, envisions that the employer may only be willing to accept a flexible working request with modifications. Thus, acceptance can be made contingent on the employee signing up to the types of contractual terms discussed earlier in this article, or to a policy which sets out the circumstances in which the employer can terminate the arrangement.

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