With the final stage of the Government’s Roadmap out of Lockdown fast approaching, Will Clift discusses some issues for employers to consider when deciding what the future of work will look like for their staff.
At present, the UK Government’s Roadmap out of Lockdown states that, on 21 June 2021, all legal limits on social contact will end. As we approach that date, employers and businesses are considering how best to manage the post pandemic world of work. According to the Office for National Statistics, during the first lockdown, 86% of the workforce worked form home “to some extent”. In the second lockdown almost 40% of workers were mainly working from home. Recent research (see A. Felsted; Homeworking in UK) suggests that 88% of employees who worked from home during the lockdown would like to continue doing so in some capacity in the future, with almost 50% of employees wishing to work from home some or all of the time. These statistics indicate that there will be strong demand for some form of homeworking from many employees as we move out of the pandemic.
The majority of the UK’s 50 largest employers, and many others, have indicated that they will be implementing “hybrid” working policies, under which employees will work from home and the office. With fewer employees in the office at any one time, this approach allows employers to save on overheads, including the cost of office space, whilst providing greater flexibility to their workforce.
Employers who are seeking to require employees to work from home for a certain proportion of the week should however bear in mind that homeworking may in fact be a disadvantage to some of their workforce, and those individuals may not wish to do so once it is safe to return to work. By way of example, those in shared accommodation (such as younger workers, who are statistically more likely than their older peers to be sharing their living space), may have difficulties working from home. Similarly, those with mental health difficulties may find the isolated nature of homeworking challenging.
Within this context, employers should be aware that some of these employees may seek to argue that the imposition of such changes is indirectly discriminatory (for example, by reference to their age or disability), and that any mandatory requirement to work from home is likely to amount to a change in the employees’ contractual terms which will require the employee’s consent (unless the employer has a clear contractual right to require employees to work from home).
Of course, not all employers will wish to allow their employees to work from home (or will only wish to allow homeworking in limited or exceptional cases). In such cases, employers should be mindful of the fact that employees with at least 26 weeks’ continuous service have a statutory right to make a flexible working request. Under the statutory regime, employers can only reject a request for one of 8 specified reasons, including ability to meet customer demand, detrimental impact on quality of work, and cost. During the pandemic, many employees demonstrated that they can work effectively and profitably from home and employers may therefore find it harder to justify rejecting a flexible working request for one of these reasons. Employers should be aware that, if they “unreasonably” refuse a request under the statutory regime, they could be ordered to pay compensation to the employee in question by the Employment Tribunal.
Moreover, employers may face discrimination claims by employees in relation to any refusal to allow flexible working (for example, from women with childcare responsibilities, who may allege that they are disproportionately disadvantaged by a policy which does not allow flexible working, when compared to their male colleagues). Businesses should also be mindful that the government’s flexible working taskforce recently recommended that flexible working should be the new “default position” for all workers, and that the government has indicated that it agrees with this view. Legislation to that effect may well therefore be introduced in the future. How such a rule will work in practice remains to be seen, but it could limit the ability of employers to require staff to work from the office.
Bearing all of this mind, employers would be well advised to consult widely with their employees before implementing any policies with regard to homeworking, and to keep a close eye on any forthcoming changes to the right to request flexible working.