Flexible working rights post-Covid demands attention from employees

With the economy gradually reopening, it seems likely that we’ll soon be in a situation where the government relaxes its current advice to “work from home unless it’s not possible to do so”.

By Sarah Cochrane, Carson McDowell
Friday, 2nd July 2021, 6:00 am

That means the issue of bringing people physically back into work will be firmly on the agenda for many employers who have been operating with the majority of their staff working remotely.

There’s been much debate about whether the 9-5 is dead and whether people will actually want to go back to working full time in their employer’s premises now that many businesses have successfully operated with staff working from different locations.

However, while these conversations will undoubtedly take place in every office-based organisation across Northern Ireland it is important to note that legally, unless the contract of employment states otherwise, staff do not have a right to work from home. While some people may have decided they want to work from home permanently or more often, if their employment contract says they are expected to carry out their job at a work address, that will still apply after restrictions are lifted.

Sarah Cochrane, Carson McDowell

So where does that leave employees who want to work from home? Since 2015, employees who meet certain eligibility criteria have a statutory right to make a flexible working request to change their contractual working arrangements such as hours, days of work and place of work. That statutory right remains in place and employers are bound by legislation to consider this request in accordance with a procedure that is set out in legislation. Employers do have the right to refuse the application but it must be for one of the following business reasons:

 burden of additional costs

 detrimental effect on ability to meet customer demand

 inability to reorganise work among existing staff

 inability to recruit additional staff

 detrimental impact on quality

 detrimental impact on performance

 insufficiency of work during the periods the employee proposes to work

 planned structural changes

Whilst it is anticipated that it will be more difficult for employers to refuse flexible working requests in the future (because people have been doing their jobs successfully away from an office for so long now), it is also important to remember that during the pandemic, employers often had no other option. They had to make it work, as the requirement to work from home was due to a mandated government lockdown. Whilst thankfully, many businesses have survived with employees working from home, many have not thrived. They have been ‘making do’ with employees working from home and are therefore still likely to have sound business reasons for needing employees to return to the office.

Although many employers won’t legally have to change their approach to flexible and hybrid working, many of them will recognise that where business operations allow, there is an advantage to making the shift. Post-pandemic many companies may be willing to be more flexible because they’ve seen remote working help productivity, boost staff retention and provide an opportunity to hire new people who need a degree of flexibility. It is becoming a point of competition for talent too, with numerous surveys showing candidates see employers who embrace agile working as attractive.

As we look forward, it seems that employers will go one of two ways.

The first option is to embrace flexible working by putting a policy in place and dealing with it head on. This might involve, for example, telling staff they are expected to be in an office or place of work two or three days per week and allowing for flexibility around hours and location outside of those fixed arrangements. The second option is to return to previous norms and requiring employees to return to a physical place of work, and only considering flexible working on a case by case basis, when a formal flexible request is made through the statutory scheme.

Regardless of the chosen approach, it is safe to say that employers continue to grapple with the challenges presented by increased numbers of employees working from home. Just recently, there has been a call for a legally binding ‘right to disconnect’ for employees to ensure a better work / life balance. The right to disconnect could mean for example that emails sent outside of working hours were deleted or put on hold until working hours resume. Whilst achieving that balance is arguably more important than ever, given the blurred line between home and work life, it is difficult to see how the right to disconnect would work in practice given that more often than not, it is the employees themselves who are seeking increased flexibility and who are requesting to work outside of “normal” office hours.

For many employers pre-March 2020, flexible and remote working were uncharted waters, with perhaps little appetite for change. However, given that a complete return to the “old” normal is increasingly unlikely, I would encourage employers to give consideration to flexible working in the long-term both for operational reasons as well as employee engagement.

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