This article was first published by People Management in July 2024.
Despite many predictions during and immediately after the pandemic that full-time office working was gone for good, KPMG reported at the end of 2023 that 64 per cent of global CEOs predicted a complete return to in-office working by 2026.
Indeed, Manchester United confirmed recently that all its non-footballing employees would be required back in the office full time from June, and Boots announced it will scrap home-working altogether for its administrative staff, who will be required back in the office full time from September.
While full-time office working does not seem to be on the cards for most companies, there does appear to be an increasing expectation that employees will spend more time in the office. It has been reported that companies such as EY and BNP Paribas are monitoring data (for example, card entry systems) to check that employees are complying with their policies on minimum office attendance and some firms have threatened disciplinary action for staff not following the rules. Other companies are taking a different approach, with it recently being reported that law firm Addleshaw Goddard will include office attendance as part of its performance reviews, which could affect pay.
However, while companies have been busy introducing initiatives to bring staff back to the office, the law on flexible working has changed and employees’ rights to work flexibly have, in fact, been strengthened. Since April, the right to request flexible working became a ‘day one’ right and employees are now entitled to submit two requests a year (up from one). This means that not only are more employees eligible to make requests, but those who are eligible will be able to make more requests.
Other changes to the legislation – including reducing the timeframe for the employer to reach a decision on the request from three months to two months (unless extended by agreement), plus the introduction of a mandatory requirement to consult before refusing a request – are likely to place additional burdens on employers in terms of the time and resources required to deal with such requests.
Although it is only mandatory to consult employees if the employer is minded to refuse the request or not accept it without modification, consultation is always sensible to gain a comprehensive understanding of the reasons behind the request. This is particularly key where the employee making the request has a protected characteristic as this means unintentional discrimination is possible.
Indirect discrimination and failure to make reasonable adjustments are likely to be the most common discrimination claims employers will face, for example, a carer requesting to work from home due to looking after a disabled relative or a woman returning from maternity leave requesting a change in hours because of childcare commitments. Employers need, therefore, to be mindful of these potential risks and to take action to mitigate them.
If an employer does refuse a request, the outcome letter must:
list each of the specific factors considered by the decision-maker;
clearly articulate their rationale; and
set out the evidence to substantiate that rationale.
Refusing a request simply because it will deviate from a blanket company policy on home/office working or using a template refusal letter will not suffice.
Increasing expectations of more time in the office, coupled with the bolstering of flexible working rights, means it is likely that flexible working requests will be on the increase. In a recent flexible working tribunal case – Wilson v Financial Conduct Authority – the employment judge commented that it was a case that raises a “key issue in the modern workplace and which will no doubt be the subject of continued litigation”.
Employers should ensure, therefore, that they are familiar with the new requirements set out in the flexible working legislation, update (and follow) their policies and deal with each request promptly, fairly, transparently and on its own merits. Failing to do so risks falling foul of not only the flexible working legislation but also discrimination legislation, which can result in more costly, complex and financially and reputationally damaging litigation.
Should you wish to discuss any of the issues raised in this article, please do not hesitate to contact Lynsey Blyth.
