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Can employers refuse remote flexible working requests post-pandemic?

11 November 2021 #Employment


It’s inevitable that many employers will now find themselves facing an increasing number of flexible working requests from employees who have been able to work remotely from home in recent months and wish to continue to do so in some form.   

Under the current statutory framework there are eight grounds on which such requests can be refused including where this would have a detrimental impact on quality, performance or the ability to meet customer demand.  However, the question arises – do these grounds still stand up to scrutiny for organisations that allowed employees to work from home during the pandemic? 

The law on flexible working 

Legally, all employees, with at least 26 weeks continuous service, can make a flexible working request which an employer must consider.  These requests could relate to changes to hours, working times or to the employee’s place of work.   

Employers are required to deal with such requests in a reasonable manner and to notify the employee of the decision (including the decision on appeal) within 3 months of the request (unless a longer period has been agreed with the employee).  A request can only be refused by an employer for one, or more, of the following reasons: 

  1. The burden of additional costs 
  2. Detrimental effect on ability to meet customer demand 
  3. Inability to re-organise work among existing staff 
  4. Inability to recruit additional staff 
  5. Detrimental impact on quality 
  6. Detrimental impact on performance 
  7. Insufficiency of work during the periods the employee proposes to work  
  8. Planned structural changes 

Position of flexible working post-pandemic 

All of the grounds for refusing requests remain legally valid and may legitimately be relied upon by employers in refusing requests.    

However, reliance on the ‘burden of additional costs’ will clearly reduce considering the fact that many businesses have already fronted this cost at the start of the pandemic and homeworking arrangements.   

Further, there is likely to be clear evidence now with regards to the impact home working has had on issues such as quality, performance and meeting customer demands as working from home in recent months has provided the equivalent to a lengthy trial period which can be used to assess such points.   

Employers need to review this evidence carefully before refusing such requests.  If there were no issues in these areas during the pandemic, then it may be difficult to assert the alternative now.   

Grounds such as inability to re-organise work, recruit staff and insufficiency of work do not tend to be used in the purely homeworking context (assuming the employee is able to continue working as normal at home) but will still be relevant for those wanting to adjust their hours and working times.   

If they were permitted to do this during the pandemic with relative ease (for example, if they reduced their working hours or were on furlough) then again, this may provide evidence to support/undermine the grounds for refusing.    

However, it is important to note that just because something was permitted at the height of the pandemic does not mean it continues to be permissible.  For example, it may be that re-organising work was relatively easy during the pandemic as customer demand was significantly reduced.  If customer demands have since increased, such arrangements may no longer be viable.     

Refusing on the basis of planned structural changes is unchanged by the pandemic and, as always, those planned changes will need to impact upon the ability to homework to be legitimately used in this context. 

Flexible working is, and will continue to be, a hot topic.  We have previously reported on future reform and the possibility of there being changes to the grounds for refusal  

Contact our employment lawyers for legal support on flexible working. 

Clarkslegal, specialist Employment lawyers in London, Reading and throughout the Thames Valley.
For further information about this or any other Employment matter please contact Clarkslegal's employment team by email at employmentunit@clarkslegal.com by telephone 020 7539 8000 (London office), 0118 958 5321 (Reading office) or by completing the form on this page.
Disclaimer
This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full General Notices on our website.

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Louise Keenan

Louise Keenan
Associate

E: lkeenan@clarkslegal.com
T: 0118 960 4614
M: 0779 900 7325

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Employment team
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