Flex Appeal: The Battle for Hybrid Working

With much in the press concerning hybrid working – and the significant shift in just how much of it employers are willing to allow – Sean Field-Walton and Sarah Wilkinson from our UK Labour & Employment team discuss this sometimes thorny issue, and what you need to be thinking about as you navigate your way through it.

Sean begins, sensibly, at the beginning…

How easy is it for employers to bring remote working employees back into the office?

Your first port of call is simply to check the contractual basis for your staff working from home. That will guide the process for bringing them back – and how feasible that might be.

If employees make flexible working requests, what responsibilities do employers have?

Naturally, there are several things to consider here, but key among them is that any request must be considered on its individual merits, not simply rejected.

What sort of reasons for rejection count as valid?

Employers may only reject a request relying on one or more of the eight lawful reasons given in the statute. These are all fairly logical, such as whether the requested changes could adversely affect the business – if service delivery would suffer, for example, or if someone else’s workload would increase. 

And what grounds might employees have for challenging a rejection?

The main one is that the rejection is based on incorrect facts, but where employers have given requests genuine consideration, such claims have rarely been successful. Changes are afoot, however, that look set to require more detailed justification from employers.

What other watch outs are there for employers?

A key risk of refusing any flexible working request, not just a homeworking one, has always come from an indirect discrimination claim. 

Indirect discrimination is concerned with a provision, criterion or practice (PCP) which is applied to everyone, but which in reality has the effect of disadvantaging a group of people with a particular protected characteristic. Where such a PCP disadvantages an individual with that characteristic, it will amount to indirect discrimination unless it can be objectively justified.

Employers should also be aware of the non-legal risks – these mainly involve issues of reputation, recruitment, retention, motivation and productivity.

The working from home landscape is in a state of flux, and the unique relationships between individual employees and employers means there can be no one-size-fits-all approach – these points are just a snapshot of what Sean and Sarah discuss at much greater length here in this Workforce Worldview Podcast.

Their conversation throws up a lot of very useful and interesting information and is well worth checking out. For more tailored advice on your situation with flexible working requests – and all things labour and employment – do reach out to our Labour & Employment team.