As Covid restrictions begin to relax and Government guidance permits a fuller return by staff to their workplace, what should you do if the experience of home working has made you less keen to return to the old ways of office-based working?
What are your rights as an employee?
There is no right to work from home. If your employer notifies you that they intend to return you to the workplace, you can make a request under the Flexible Working Regulations 2014.
These Regulations do not only concern the place of work but can also allow for requests to change working patterns or hours. To qualify to make a formal flexible working request, you must have worked for your employer for at least 26 weeks beforehand.
*Tip - Before going into the process of a formal written request under these Regulations, ask to speak to your boss/employer regarding your expectations.
Whichever approach you decide to take and depending on your job, you will need to address such issues as:
- equal ease of communication, particularly, where required to be made with people outside the workplace, both by phone and meetings by Teams/Zoom/Skype,
- no difference in reliability that work is being completed, e.g., time recording or a daily report,
- protection of confidential information, e.g., only working on your office laptop and other devices, and working in a room or home office space not being shared with anyone else.
Detail to your employer the success of your “enforced” home working due to Covid 19 as evidence that all or any areas of concern or possible impracticability, are more than adequately dealt with by the set-up you have. Give due reassurance that you are taking proper breaks from working, eating away from your desk etc. Invite your boss/employer to come and see your set-up.
*Tip - This is a good idea in any event as the employer is still liable to maintain a safe working environment. An employee’s home is susceptible to a claim in the event of an accident during working time.
Flexible with your working
Consider offering your willingness to attend the workplace for some of the time, either regularly or when asked to come along in person to attend a particularly important meeting. If necessary, say that you will agree to a trial period, although in that event make very clear what the criteria would need to be to justify discontinuing the arrangement.
If the request is made formally then bear in mind your employer can refuse it on several different grounds.
These grounds are quite extensive and include;
- effect on organising other staff and staff recruitment,
- negative effect on quality, performance or meeting customer demand, and
- planned changes to or reorganisation of the business with which your request will not fit.
Other staff may be envious of your arrangement and see it as a privilege that they have not been granted.
*Insight - This should not, of itself, make any difference, however, it might make it more difficult for your employer to refuse a similar request made by your colleague(s).
Your employer's decision
Your employer has up to three months to consider and decide on your request. During that period, unless it is granted immediately, there must be a meeting held with you to discuss in more detail the arrangements you have proposed and, where appropriate, any alternatives.
If your boss/employer requests or requires you to return to the workplace whilst your request is pending, you can ask for reconsideration and/or suggest that it amounts to an unfair pre-judgment. Ultimately, however, assuming contractually your normal place of work is specified as the employer’s workplace, it will be difficult to refuse.
Within these three months, your employer must notify their decision. If turned down, you have a right of appeal which will require the holding of a further formal meeting to discuss. Your written appeal should carefully address the grounds of refusal as notified to you. A further three months are allowed for this appeal process to be dealt with.
Flexible Working Regulations 2014
Proceeding via the Flexible Working Regulations might seem a long process if you have attempted to discuss with your employer the benefits of continuing to work from home but have been rebuffed in a way that causes you to believe there is no good reason for refusal.
It is the only route to a satisfactory outcome if your employer is being stubborn. Having followed through the Flexible Working process unsuccessfully, you do then have a right to bring a claim to the Employment Tribunal if you can show your employer has failed to follow or engage with the procedure correctly or has tried to justify a refusal on one of the available grounds via facts which you can demonstrate are incorrect.
Making a Tribunal claim
Whilst making a Tribunal claim can lead your employer to properly reconsider your flexible working request and pay you up to 8 weeks wages in compensation, it cannot as such change the decision entirely in your favour.
It may be possible to challenge a refusal on other grounds.
If there are factors that you can argue relate to a protected characteristic, such as:
- your sex,
- your ethnic origin or
- any disability,
then unwillingness to grant a Flexible Working request could form the basis for a claim against your employer for unlawful discrimination.
An example employee is the mother of dependent children making a request which in addition to home working seeks some additional flexibility in her working hours to consider end of school day routines.
If required by your employer to return to full workplace attendance, any unfavourable treatment which may follow, such as not getting the same benefits as are given to colleagues, being unfairly “singled out” for work performance, could amount to an “unlawful detriment” giving the right to bring a compensation claim.
If dismissed for reasons which you can show are based upon the fact you had made the homeworking request, then that dismissal will be automatically unfair. This will enable you to bring a claim to the Employment Tribunal, including lost earnings arising from the dismissal.
What can you do next?
If you are currently working from home, want to continue or believe the arrangement is operating well but expect your employer will try to insist you return to the workplace, it is very important to go about matters carefully.
Contact Hatch Brenner Employment Solicitor, Dionne Dury, via firstname.lastname@example.org or 01603 660811 for an initial consultation to discuss how best to proceed from a tactical point of view and to present to your employer the best possible case.
Read more: Employment Law for Employees
Read more: Right to flexible working