We have asked the employment team at Tughans LLP to provide practical answers to unusual, sensitive or complex work-related queries. We call this feature “How do I handle it?”

The articles are aimed at HR professionals and other managers who may need to deal, from time to time, with the less commonplace disputes at work; issues that may, if handled incorrectly, lead to claims of discrimination, constructive dismissal or some other serious difficulty.

This month’s problem concerns:

“We are finding it difficult to encourage employees back to working in the office following the pandemic. The majority of employees have adjusted, now preferring to work from home on a full-time basis. As a result we have received several flexible working requests. How should we handle this?”

Employers and employees continue to face challenges in the workplace in the aftermath of the pandemic. Some employers are encouraging a return to the office, while others are choosing to  continue with hybrid or even exclusively remote working arrangements. Commonly, flexible working requests relate  to a change in working hours, however employees can also use them to change their principal place of work.

An employer’s approach will be dependent on the specific industry and you should give careful consideration to which working arrangement works best to meet your business demands.

We suggest you review the employee’s contract to identify their place of work and working arrangements and check your policies and procedures. In addition to any flexible working policy you might have, in Northern Ireland, employees have a statutory right to make a flexible working request once they have been employed continuously for over 26 weeks and can make a request once every twelve months. The position is slightly different in England and Wales.

While you are under no obligation to accept a flexible working request, you must meet with the employee to discuss their request, give the request due consideration and ensure that you handle the request in line with statutory procedure, and your policy if the business has one. You should be aware that the statutory procedure is subject to stringent timescales.

If you grant the request and accept the new working arrangement as working from home, this amounts to a variation of the employee’s employment contract and should be recorded in writing and communicated to the employee. You may allow the arrangement on a trial basis only and again this should be notified to the employee and diarised for review.

You can only reject a statutory flexible working request if you are able to rely on one of the business reasons for refusal. Grounds for refusal are limited and give employers the power to reject requests if acceptance would; create additional costs for the business, have a  detrimental effect on ability to meet customer demand; the business is unable to re-organise work among existing staff or unable to recruit additional staff; have a detrimental impact on quality or performance; there is an insufficiency of work during the periods the employee proposes to work; or there are planned structural changes for the business. You must consider each flexible working request on the specific facts which should enable you to identify any arrangement which will work operationally, or those where there may be potential grounds for refusal.

If you reject a flexible working request, you must provide the employee with written feedback of the grounds for rejection and inform the employee of their right to appeal your decision. If the employee remains dissatisfied with the process, they could invoke your grievance procedure and or issue a claim to the Tribunal.

If the employee’s request is rejected and they continue to refuse to come back to the office, you should again check their contract of employment, as this will ultimately confirm the employee’s principal place of work. Refusal to return to work in the office could be viewed as a failure to undertake a reasonable work instruction and you should consult and follow your disciplinary policy and procedure for guidance. Before taking any disciplinary action, we suggest you make further enquiries as to why the employee is refusing to return to the office. Their flexible working request may be as a result of a medical condition, or perhaps due to childcare obligations. The organisation’s failure to handle such situations appropriately could result in a claim for discrimination on grounds of disability (provided the employee’s condition is a disability within the meaning of the Disability Discrimination Act 1995) or gender.

If after further investigation there is no valid reason for the employee’s refusal to return to the office, you could advise the employee that they are contractually bound to carry out their role and return to the office, as their usual place of work. You may wish to invoke your disciplinary policy and procedure. As always you should ensure any procedure is fair and allow a right of appeal.

As the business can receive multiple applications for flexible working, you could consider the requests in turn, unless there is a particular urgency with a request, and you should consider factors and proposed working arrangements separately in each individual case.

It may be useful to conduct a survey among your workforce to better understand why employees are reluctant to return to the office. This exercise could provide useful insight when handling requests.

As always, appropriate action will depend on the specific circumstances and you should always ensure to follow a fair procedure, as well as observing your statutory obligations. Failure to follow procedure could put the business at risk of discrimination claims.

Legal Island Training Resources for Your Staff

Protecting Yourself when Home Working | eLearning Course

Are you responsible for overseeing the implementation of training for all employees in your organisation? The phenomenon of home working has taken on a much greater significance since the pandemic. These benefits have brought remote working to the forefront of working life, with many employees now working from home on a permanent basis. However, home working can also present several health and safety risks and it's important for employees to know how to protect themselves from injury and ill health when working from home.

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Click here to view our course on protecting yourself when home working.