CHAPTER THREE – DEALING WITH A REQUEST TO WORK FROM HOME –
FORMAL FLEXIBLE WORKING REQUESTS
As a result of the situation with Covid-19 large parts of the UK working population ended up working from home out of necessity without having made any request to do so. This is not traditionally the case though as ordinarily an employee wishing to work from home would need to make a request to their employer to work from home.
Covid-19 has shown many employers and employees that working from home can be possible and the benefits of doing so but employers need to be aware of how to deal with requests to work from home in a fair and consistent manner which does not fall foul of employment law legislation.
Formal Flexible Working Request
At this moment in time, there is no technical right within UK employment law legislation which gives an employee the right to work from home.
However, since 2014 and the passing of the Flexible Working Regulations there has been provision within the ERA.
The section which covers flexible working requests can be found at s.80F of the ERA. This gives employees the power to request changes to their terms of employment if the changes relate to either:
The hours they work;
The time they are required to work; or
Where they are required to work.
It is the third option here which gives the employees the right to make a formal request for home working under these provisions.
ACAS has also produced useful guidance for employers in dealing with flexible working requests. Whilst the ACAS code is not binding on employers it does provide guidance on best practice and should be followed as far as is possible.
One thing that should be noted for employers and employees is that the effect of an employee making a request under s.80F of the ERA is that it makes a change, a permanent one, to their terms and conditions of employment. Therefore whilst technically an employee could make a request under s.80F on a temporary basis ordinarily temporary requests are best not considered through the formal flexible working route due to this formal change in the contract of employment and are best done through other means which are considered in Chapter 4.
Who is eligible to make a flexible working request?
Not everyone who works for a business is eligible to make a request for flexible working under s.80F of the ERA. Only those members of staff who meet certain criteria may be eligible to make such a request.
There are 4 tests someone must meet to be eligible to make a request under s.80F of the ERA.
The person making the request must be an employee
The scope of the status of a member of staff within an organisation is outside the scope of this book, but in brief terms at this time there are essentially 3 categories of people who may work for an organisation. You have employees, workers, and self-employed members of staff.
There are a number of tests which can be carried out on a member of staff’s working situation to determine their status but the key reason this is often important is that employees have far more protection in UK employment law legislation that workers or those who are self-employed.
A flexible working request is an example of this, so only employees of an organisation have a right to make a flexible working request, not worker or self-employed individuals.
They must have at least 26 week’s continuous service
An employee will need to have had 26 week’s continuous service before they can make a flexible working application under s.80F. This 26 week’s continuous service requirement therefore gives employers some protection that a new employee cannot make a request immediately upon starting with an employer. This is particular helpful in the context of home working where you may need any employee to work in the office for a period of time until they are acclimatised to an employer’s systems and are able to work from home.
It is important to note that is continuous service rather than how long they have been employed with the organisation. This means that if the employee has been subject to a TUPE transfer into the organisation or has come from to that organisation where previous service is recognised, then service with their previous employer would need to be taken into account as well.
They must have not made a request under s.80F of the ERA in the past 12 months
Employees can only make a request every 12 months. This prevents employees from seeking to abuse the system by making frequent requests from their employer if one has been previously turned down.
They must not be in a category excluded from making a request under s.80F
There are broadly speaking 3 groups of people excluded from making a flexible working request. These include members of the armed forces and employee shareholders, however for the majority of organisations these two excluded categories are not relevant.
One area which might be relevant for most organisations though is that the right to request flexible working under s.80(F) does not apply to agency workers.
Both agency workers and employee shareholders do have a limited right to make an application for flexible working under s.80F but only in respect of those who are returning from a period of parental leave.
Process for dealing with a request
When making an application for flexible working, s.80F and the Flexible Working Regulations provide some elements that an application for flexible working needs to include if it is to be a valid.
Be in writing;
State that it is an application under s.80F of the ERA;
State the change they are requesting and when they wish the change to take effect;
State if the employee has made an application for flexible working and if so when; and
Explain the effect that the change will have on the employer and how the employee thinks that effect might be dealt with.
The ACAS Code on Flexible Working also suggests that requests should also make clear if their request is due to a protected characteristic under the Equality Act, such as for caring purposes or health reasons.
The easiest way of ensuring all this information is included in a request is by an employer including a specified form with the details they need to fill out and some explanation.
In particular employees should be encouraged as far as possible to consider the effect of the change and how this might be mitigated. This requirement can be very useful from the perspective of an employer as it makes the employee properly think how the impact might be mitigated and those flexible working requests which include detailed information here are the ones that are more likely to be granted.
Under s.80G(1) of the ERA it makes clear that an employer should deal with any flexible working application in a reasonable manner. The legislation doesn’t specify what is meant by “a reasonable manner”, however the ACAS Code on Flexible Working does provide some guidance for employees which if followed is likely to show that the application was dealt with in a reasonable manner.
The first step upon receipt of a request for home working under this procedure therefore would be for an employer to arrange to meet with the employee to discuss their request as soon as possible, the only exception to this would be if the employer intends to grant the request in any event.
In these discussions the employer should be clear about what changes the employee is requesting and the practical effect they see happening from those changes, such as if they have supervisory responsibilities. The employer should also make clear if the home working is going to cause any impact on benefits that they have and make sure the employee is aware of this.
There is no strict legal requirement for an employer to allow an employee to be accompanied to these meetings but it would be best practice and is recommended by the ACAS Code that employees are allowed to bring either a colleague or a Trade Union representative to this meeting to discuss the proposals.
An employer should also make clear from the outset the expected timescales they require to come to a decision to manage the expectations of the employee, particularly as the timescales for an employer to come to a decision are particularly long.
If an employee fails to attend this arranged meeting to discuss their request without good reason on two separate occasions then the employer can treat the application for flexible working as being withdrawn and the employee will then not be able to make another request for 12 months.
Coming to a decision
S.80G of the ERA sets out the timescales in which an employer needs to have made a determination on the employee’s request, which is 3 months from the date the employee made the request. This is the date at which the formal request is made so if an employee discussed making an application for home working using the statutory regime then the 3 months start from when they formally made their application. As the majority of applications are sent electronically or hand delivered, it should be relatively obvious in most circumstances when the 3-month deadline will pass.
An employer and employee can also agree to extend this 3-month period but there needs to be agreement between the parties. In practice most employees will often agree to any extension as extensions are only generally necessary if the employer needs additional time to consider the request and due to the relative wide flexibility they have to deny a request it is often in the best interests of the employee to give the employer as much time as possible to consider the request.
Granting a request
If the employer grants the employee’s request then the home working requested by the employee will form a permanent change to the employee’s terms of employment.
If the employee is going to work from home on a full time basis or predominantly work from home it is likely that their place of work will have changed and this information is part of the information that is required to be included in an employee’s particulars of employment under s.1 of the ERA.
Under s.4 of the ERA if there are any changes which are made to an employee’s particulars of employment, they need to be given a new statement of particulars of employment within at least one month of the change happening.
As an employer is required to make these changes under s.4 of the ERA in any event and issue a new contract of employment it would be sensible for an employer to consider the rest of the contract and any new contractual terms they may wish to include within the contract. Chapter 7 includes key points on what contractual terms should be considered within the contract of a home worker.
As well as the legal requirements it is also good practice to have regular reviews with the employee once home working has been implemented so both parties can discuss how it is working and if necessary if any changes are required to the initial agreements that were made.
Refusing a request
Under the statutory flexible working request scheme if an employer is going to refuse an employee’s request for flexible working then it needs to rely on one of eight reasons set out at s.80G of the ERA, these are:
The 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.
Planned structural changes.
The test is a subjective one for the employer to determine and so if the employer considers that any of these eight reasons apply then it can refuse the request.
There is no legal requirement to give an explanation on why the employer considers one of these particular statutory reasons to refuse the request is applicable in the circumstances. However, it is best practice to provide an explanation as there can be potential consequences if an employer refuses a request and so providing an explanation on the refusal should be considered.
In practice with the wide ranging reasons that an employer can refuse a request and the fact that it is the employer’s subjective decision means that in practice in most circumstances an employer will be able to justify refusing most requests for flexible working if they don’t feel they are workable.
Technically there is no statutory requirement for an employer to allow an employee a right of appeal against a decision to refuse a flexible working request. However the ACAS Code recommends that employers offer one and an appeal can be a good opportunity for an employer to consider its original decision and it makes it more likely that an employer will have dealt with the application in a reasonable manner.
If an employer does grant an employee a right of appeal it should try as far as possible to try and follow the ordinary procedural elements that they would consider in any appeal process. This includes having a more senior member of staff hearing the appeal than the person who made the initial decision and ensuring the person hearing the appeal has had no involvement in the original decision-making process.
What issues might employers face if they refuse a request?
As seen earlier in this Chapter the circumstances in which an employer can refuse an employee’s flexible working request are very wide. Realistically these options are wide enough that an employer can reject the majority of applications for one of these reasons.
An employee can technically bring a claim against their employer for a failure to properly consider a request for flexible working under s.80F of the ERA but such claims are very rare for a few reasons.
Firstly, the circumstances in which an employee can bring a claim are quite limited and are primarily due to failings in the process rather than any actual decision. These circumstances are:
The employer failed to deal with the request in a reasonable manner,
The employer did not deal with the request within the require time frame;
The employer rejected the claim for a reason other than those set out in the statute;
The employer’s decision was based on incorrect facts; or
The employer considered the request withdrawn when it was not entitled to do so.
The other reason these claims are rare is that the remedies available to employees are fairly limited. An Employment Tribunal has two options open to it in these claims, and it can choose to award one or both of them.
The Tribunal can ask for the employer to reconsider the request. The employment Tribunal importantly does not have the power to substitute its own decision for that of the employer. Therefore, it is open to the employer even upon an order for reconsideration to still come to the same decision it did in the first instance.
A Tribunal can also award compensation but the amounts again are limited. A Tribunal can award up to eight week’s pay to an employee in circumstances where it brings a successful claim for a breach of s.80F of the ERA but that pay is limited to a set statutory amount. As such the maximum an employee could be awarded between 6th April 2020 and 5th April 2021 is £4304.
Whilst claims for an actual breach of the s.80F of the ERA are rare by themselves a failure to grant a request from an employee may result in other claims being brought against an employer.
A rejection of a flexible working request could result in a claim from an employee of constructive dismissal. An employee could claim that their employer acted in such an unreasonable manner when considering their flexible working request that it has destroyed the trust and confidence between the parties. In all likelihood for such a claim to be successful the employer would have had to have acted in a particularly unreasonable manner and a simple rejection of their request would be insufficient.
The most likely claim an employer may receive for refusing a request to work from home from an employee is likely to be a potential discrimination claim and these circumstances are dealt with in more detail in Chapter 4.