For August 2020, we have asked the employment team at Tughans 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 common place disputes at work; issues that may, if handled incorrectly, lead to claims of discrimination or constructive dismissal or some other serious difficulty.

I am a HR manager in a business which, like many others, had to implement home working at extremely short notice at the beginning of the Coronavirus lockdown. This has been largely successful, and a number of employees have requested permission to work from home on a permanent basis once normality has resumed. Given that there haven’t been any major issues, what scope do have to deal with these requests on a case by case basis?

Since lockdown restrictions were introduced, large numbers of employees have worked from home for a prolonged period for the first time. Many have responded positively to this change and it is expected that the pandemic will drive calls for greater flexibility in working arrangements going forward. However, what is suitable during a crisis may not be viable in the long-term, and you will naturally want to consider what works best for your business.

The legal position is that all employees with over 26 weeks’ continuous employment can submit a formal, statutory flexible working request. While these requests are often for a change in hours, employees can request a change to where they work from – including their home. When an employee makes a statutory flexible working request, you must follow the statutory procedure and can only refuse their request if you can identify one or more of the eight statutory grounds for refusal.

These grounds are reasonably general and are designed to permit employers to refuse requests which would cause undue disruption, service issues or increased costs. For example, you are able to refuse a flexible working request which would have a detrimental impact on quality, performance or ability to meet customer demand. You should consider whether any of these grounds apply to each request, taking into account the employees’ particular duties and responsibilities. For example, if an employee would usually be required to attend client meetings or other “on site” tasks, working from home on a permanent basis might not be suitable due to its effect on your business’ ability to meet client demand.

Where multiple applications have been received, as in this case, it is generally best to consider them on a “first come first served” basis. However, given that refusing a request made by an employee who is protected under anti-discrimination legislation (such as a disabled employee) presents a greater risk of a discrimination-based claim, you might decide to prioritise these requests on a risk-management basis, where appropriate.

You are also required to consider reasonable adjustments for disabled employees, which may include accepting their request in circumstances where a request from a non-disabled employee would be refused.

All employees are entitled to make flexible working requests regardless of whether or not they have care responsibilities, and you should not take the personal reasons behind an employee’s request into account. However, studies such as the recent CIPD report on flexible working suggest that women make more flexible working request than men and in the past Tribunals have accepted that women usually bear greater care responsibilities. This means that a blanket refusal of flexible working requests could lead to allegations of indirect sex discrimination from female employees.

How you deal with these requests will of course depend on your business’ own circumstances and capability to adopt flexible or remote working arrangements. If you accept a request, this will constitute a contractual variation and should be formalised in writing. It would be prudent to set clear requirements for office visits, meetings or other conditions which the employee will be expected to comply with. You should also put a formal home-working policy in place which deals with issues such as data protection, performance management and confidentiality. If you already have a policy, you should ensure it is robust enough to deal with home working on a wider scale.

In short, while the urgent stage of the HR response to the pandemic has passed, you should be prepared to deal with the broader and more systemic changes which are expected to follow, in accordance with the existing statutory regime on flexible working requests.