Four in ten organisations returned to being full-time in the office last year, but at the same time three in ten employers saw an increase in staff working from home. These contrasting findings suggest a struggle between what employers and employees want. Where there is a struggle, there is the potential for conflict, and tribunal claims.

Background

At present, all employees with 26 weeks service’ or more have the right to request changes to their working pattern. This could be changes to working hours, days, or location, including hybrid or exclusive homeworking.

From 6 April 2024, fundamental changes are being made to the rules on flexible working which employers will have to get used to. What isn’t changing, however, is the employer’s ability to refuse a flexible working request and the statutory reasons for doing so.

Changes to flexible working

We know for certain that from 6 April 2024 there will no longer be a service requirement for making a flexible working request. That means it will be open to all employees from their first day at work to ask for changes to be made to how they work.

At the time of writing, we are still waiting for confirmation that the following changes to flexible working will also come into force on 6 April 2024.

The other changes set to be brought in by the regulations are:

• employers will be required to suggest alternative options when refusing a request. This is designed to make flexible working requests more accessible and put the onus on the employer to provide options
• employees will be able to make two requests in any 12-month period
• the response time to deal with a request, including appeal, will be reduced from three to two months
• employees will no longer be required to set out the effect their requested arrangement will have on the business and suggest ways their employer can manage it.

Refusing a request

One of the things not changing from 6 April 2024 is the ability to refuse a flexible working request, and the reasons that need to be given for doing so. Where an employer decides a request cannot be accommodated, their refusal should be based on one or more of the following reasons.

• The 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.

Whichever reason(s) is selected, it should be explained to the employee so as to justify the refusal. As the employee can appeal the decision, giving robust reasons is best. It can also provide a defence should an employee challenge the refusal of a request, as was seen in Wilson v Financial Conduct Authority (2024).

Wilson v Financial Conduct Authority

This case involved a senior manager who submitted a flexible working request to work exclusively from home, as she had done throughout and since the various lockdowns put in place by the Government. This request was in response to a new requirement brought in by the employer, under which employees were to attend the office for at least 40% of their working time. This employer was not alone in making such a request. Research has shown that four in ten organisations moved to requiring full-time office-based working in 2023, with employees both in the public and private sector being forced to give up their work from home lifestyle.

The employee’s request and appeal were refused, and her line manager was clear on the reasons why. They explained that to allow this request there would be a detrimental impact on both the employee’s performance and the quality of her output. This was because she would miss face-to-face training sessions, departmental away days, and meetings. She would also not be able to effectively coach new team members nor input into managerial strategy and engage in collaboration with colleagues. This was despite the employee’s excellent performance throughout her period of homeworking, which was readily acknowledged.

Unhappy with the outcome, the employee brought two claims against her employer. The first was because the employer didn’t complete the entire flexible working process within the statutory three-month timeframe. The other was that the employer had relied on incorrect facts in refusing the request. In other words, she was saying the employer was wrong in relying on the reasons it had used to refuse her request.

Before the employment tribunal (ET), the employer set out its reasons for refusal and what the line manager considered in coming to that conclusion. This, the ET said, showed that a wide range of factors had been taken into account when this decision was made. Because of this, the ET found that the employer was correct to point out that being at home can have a bad effect on how well the employee works and their ability to manage staff. It also found that the technology in place “…is not well suited to the fast-paced interplay of exchanges which occur in, for example, planning meetings or training events when rapid discussion can occur on topics”. As a result, the employee lost this part of the claim. She was however awarded £643 in compensation as the employer was 21 days late in finalising the process.

What this means for employers

The outcome in the Wilson case is an interesting one, and it will no doubt give many employers food for thought especially as they are likely to see an increase in flexible working requests once the changes come in in April and more employees are able to make requests (and more frequently). However, the facts in the case were important to the outcome: the employee was a senior manager with many and varied responsibilities. It cannot therefore be said that another employee in different circumstances would not win their claim against their employer who refused their request on untrue grounds.

Takeaway

With the changes set to come in for flexible working, now is the time to review all documentation that relates to flexible working, as it will probably need updating. This updating process can begin once the regulations are finalised; they can, after all, still be changed until that happens.

This is also the time to identify which members of staff deal with flexible working requests and make plans to get them up to speed with the new rules. Letting them know that they may see more requests from relatively new starters is also a good idea, especially if otherwise they would refuse to deal with the request because they believe the employee to be ineligible to make it.

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This article was first published on 2 February 2024 on CIPD HR-inform Pro