More than five years after the start of the COVID pandemic, “return to office” approaches are evolving. Increasingly, large employers in the UK are requiring a full return to office. For example, companies such as Amazon have recently asked staff to return to the office full time. Other employers may not require full-time office attendance, but they are adjusting their hybrid working arrangements, increasing the number of days which must be spent in the office.
Having enjoyed the autonomy and flexibility of remote work during the pandemic, employees are now hesitant to give it up. Remote working is fiercely valued by employees with numerous surveys showing it to be more important to employees than pay. Employees are continuing to strongly resist changes to hybrid working arrangements – most commonly by submitting formal requests for remote working.
But the upward trend of remote working requests isn’t just about return to office mandates. The pandemic has reframed home working as a viable solution to a whole range of predicaments from health concerns to caregiving or relocations. And this can often be a driver behind any requests to continue working from home.
So, as the world of work is being reshaped, employers will need to be ready to respond to an increase in requests to work from home.
Your workforce strategy
When settling on a workforce strategy relating to remote working, employers will need to consider how it fits in with their broader culture and values. While some organisations are worried about the impact on culture and collaboration of too much working from home, employers in sectors where remote working isn’t an option are worried about losing employees to more remote-friendly sectors. The impact of increased office attendance on both retention and recruitment can be crucial in some industries.
Will the Employment Rights Bill have any impact?
Last year, the former Conservative government made requesting flexible working a “day 1” right, removing the need for 26 weeks’ continuous service. Labour supported that plan but committed to go further by making flexible working the “default”.
The Employment Rights Bill includes two key changes:
• an employer can only refuse a flexible working request if it is reasonable for them to do so.
• an employer must state the ground for refusal and explain why it is reasonable to refuse the request on those grounds.
This is not a radical change to the existing flexible working regime and the changes arguably fall short of making flexible working “the default”. However, the need to demonstrate the “reasonableness” of any refusal will perhaps make it harder for employers to refuse requests outright.
Any changes are unlikely to come into force until 2026. Employers who are currently engaged in return to office debates may wish to prioritise discussions this year so that any remote working requests made in response can be considered under the current regime.
Having said that, this is unlikely to totally remove this issue for employers. Since April 2024, employees are able to make two flexible working requests a year. The upcoming strengthening of the law could therefore result in employees repeating requests if they felt a previous refusal was unreasonable.
Responding to requests to work from home
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 what their employer requires.
Do employees have a right to work from home?
Not unless this is part of the terms of their employment contract.
During the pandemic, some employers made changes to their standard employment contracts to include remote working as the default, at least for new starters. If remote working is agreed as part of the employment contract, it can be difficult to row back from. It’s not impossible to change, but it would involve a formal process to change terms.
Most employees are simply working remotely on an informal basis, as a continuance of the temporary arrangements put in place during the pandemic without any formalised change to their underlying employment contracts. If remote working was only ever allowed on a temporary or concessional basis, then employers can generally enforce the contractual wording about office-based working as long as an appropriate process is followed (and bearing in mind that employees might push back by putting in a request to work remotely).
In some cases, however, the terms of the employment contract are unclear or have arguably been altered by subsequent communications about working arrangements since the lifting of pandemic restrictions.
Can employees put in a request to work from home?
Employees have a statutory right to request flexible working. The law does not specifically relate to home working 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, employees are supposed to say that they are doing so. Employers are not completely free to ignore requests outside the statutory framework, especially if that would risk discrimination. A statutory request, however, triggers the employer’s obligation to follow the statutory process and associated timescales. In practice, many employers have their own flexible working policies which build in compliance with the statutory framework.
If an employee puts in a statutory flexible working request for remote working, can we say no?
Employers can only say no to a request on the basis of one or more of eight permitted business reasons, including detrimental impact on quality or performance.
There’s no appeal-level case law on remote working requests after the pandemic, but there are a handful of interesting employment tribunal decisions which look at possible reasons for fairly refusing home working requests:
• in one of the first decisions grappling with this topic last year, Wilson v FCA, the tribunal unanimously agreed that the employer’s concern about the negative impact of remote working on the performance of a senior manager were well founded, confirming the drawbacks of technology when it comes to rapid discussions and non-verbal communication etc.
• in Mr Corrigan v The Parliamentary and Health Service Ombudsman, the tribunal found that concerns around detrimental impact on workforce cohesion, collegiality and the training and retention of new starters were all valid.
• in Mr H Morsing v Howden Joinery Group plc, the tribunal agreed that the line manager had genuine concerns about a request to work from home for 3 days, rather than 2, that it would detrimentally impact quality and an ability to meet customer demand. Despite having worked from home for 3 days during the pandemic, the line manager believed being in the office more frequently would improve response times and team collaboration.
These are early signals from the tribunals but they tend to support the view that employers can legitimately refuse statutory requests for remote working, but only if this comes after proper consideration and a clear rationale. In all these cases, the employers had given the requests serious and careful consideration. For example, in Wilson, the Tribunal noted that the manager had carefully analysed the factors for refusing the request with a detailed analysis of the employee’s duties. In Corrigan, the Tribunal commented that the employer’s decision was not “off the cuff” and that extensive research had been undertaken.
What are the consequences of unlawfully rejecting a statutory remote working request?
Employees can bring an employment tribunal claim under the statutory flexible working framework if:
• the request is refused for other reasons;
• a refusal is based on incorrect facts;
• the request was not dealt with in a reasonable manner; or
• the employer failed to meet the statutory deadlines and process requirements.
Compensation for not complying with the statutory flexible working regime is limited to a maximum of eight weeks’ pay. This is not set to change under the Employment Rights Bill.
Higher compensation is available only if the employee successfully brings another claim such as discrimination.
When is it sex discrimination to say no to home working requests for childcare reasons?
Any policy 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.
If the employee wants remote working because the hours are then easier to juggle with childminder or school drop-off and collection times, an employer will find it difficult to reasonably refuse. Research shows that professional women are more likely to work full-time where hybrid and remote working are standard practice, suggesting that policies requiring office attendance do have a disproportionate disadvantageous impact on women and that women are more likely to request part-time hours if remote working is refused.
If tribunals can be persuaded that women are disadvantaged by a policy on office attendance, then:
• employers will need to be ready to justify their policy as a proportionate means of achieving a legitimate aim. This is a higher hurdle to get over than the “correct facts” or “dealing with the request in a reasonable manner” test under the statutory flexible working regime. Ideally, employers would have evidence to support assertions about why their office attendance policy is justified.
• it’s not just women who can make a claim. Men facing the same childcare obstacles can now also claim discrimination.
So, in summary, rejecting remote working requests which are made for childcare reasons carries a discrimination risk. On the other hand, an environment in which mothers of small children generally work remotely while everyone else is in the office also carries longer term DEI risks.
Could home working be a reasonable adjustment?
Employers have a duty to make reasonable adjustments for employees who qualify as disabled under the Equality Act 2010. We now routinely see “work from home” recommended by occupational health practitioners as a (temporary or permanent) reasonable adjustment. Although in some cases that assessment can be questioned, it is often the case that working from home will alleviate the employee’s problems and, as remote working becomes more of a possibility, we can expect it to be increasingly asked for as a reasonable adjustment.
Anecdotally, significant numbers of employees are struggling to return to the office for reasons connected with physical or mental conditions, including neurodivergence, anxiety and long Covid, which may not be diagnosed. Conversations about how employees are managing the return to office may surface these health issues and lead on to questions about reasonable adjustments and/or a request for a formalised remote working arrangement.
More significantly, making adjustments might mean making exceptions to your normal office attendance policy. The duty to make reasonable adjustments involves going above and beyond what you would do for non-disabled employees. A number of recent tribunal decisions have illustrated this:
• in Mr D Sanders v Department for Education, the tribunal found that a requirement to work from the office for three days each week put the claimant at a substantial disadvantage when his symptoms were exacerbated.
• in MacFarlane v HMRC, the majority found that the organisation had failed to balance its focus on getting everyone back to the office against the employee’s personal health concerns and caring responsibilities.
These decisions highlight the need for employers to ensure any flexible working request is considered in light of an employee’s health. The key challenge for employers often lies in getting occupational health advice on whether remote working really is a reasonable adjustment.
What if the employee cites caring responsibilities?
Employees with caring responsibilities for elderly or disabled adults are under the spotlight currently, with the introduction of a new right to carer’s leave in April 2024. Caring responsibilities are increasingly cited by employees as a reason for wanting remote working.
There are ongoing calls to make caring a protected characteristic in its own right, but it is not currently recognised as one. If the employee is looking after someone who is elderly or disabled, they are protected against direct discrimination based on being ‘associated’ with someone who is protected because of age or disability. This does not, however, extend to indirect discrimination.
That said, it remains arguable that women shoulder most of the adult care (as well as childcare) burden, meaning that carers may be able to challenge unjustified office attendance policies as amounting to indirect sex discrimination. For this reason, employers should be mindful of the potential discrimination risk if refusing remote working requests from carers.
Do pregnant employees have the right to remote working?
The law requires employers to assess the workplace risks posed to pregnant women and make alterations to working conditions or hours if needed. We increasingly see pregnant employees with significant (typically London-based) commutes asking for remote working. It’s arguable that an employer’s health and safety duties do not extend to risks associated with the commute (as opposed to the workplace itself) but nonetheless it is generally advisable to make adjustments where possible. Employees do not generally make these requests within the statutory flexible working regime and they are generally best dealt with outside of it not least because very quick decisions are often needed and the adjustments are only very temporary.
Top tips when handling home working requests
When considering requests to work from home against the backdrop of evolving return to office strategies, it’s important not to adopt a blanket approach and to consider each request carefully. Our top tips include:
• don’t trip up over process. Employees have a right to put in statutory requests to work remotely and this triggers a requirement to follow the correct process within the required deadlines.
• explore the reasons behind any request for remote working. Under the statutory flexible working regime, employees are not obliged to say why they are making their request. But to manage the request appropriately, employers will want to know. This is partly to help with exploring compromises and partly to help ensure that you manage the request without discrimination.
• having a clear rationale for office attendance that is shared, articulated and reviewed is important. Otherwise there is the risk of managers making inconsistent decisions or basing decisions on incorrect facts.
• your rationale will need to stand up to scrutiny. Under the flexible working regime, that scrutiny is currently relatively limited (other than in, say, an indirect sex discrimination claim where there is a higher test for objective justification). But this does seem likely to change once the Bill comes into force.
• even if your office attendance policy is legally justifiable, the statutory flexible working regime now puts a greater emphasis on compromises and you will still need to assess each request on an individual basis. You also may need to make exceptions to your policy to allow disabled or pregnant employees to work remotely in some instances.
• when considering changes to office attendance, start gathering data to support any hybrid or office working policy which would support the refusal of any request to work from home more.
• ultimately, employees place such a high value on remote working that employers need to consider their policies as part of their overall workforce strategy and value proposition.
For advice contact nicola.goodridge@goodhr.co.uk or +44 7917 878384