We are finding that there has been a notable shift in flexible working practices recently.
During the pandemic, most businesses had to set up their staff to work from home. It was the only way some could continue operating.
A few years on, and some employers are returning to pre-pandemic arrangements, requiring staff to be in the office.
Some are enforcing a minimum number of days in. Others have said that staff must return to the office completely.
As some employers push for a return to the office, there may rise in grievances, flexible working requests and claims.
How can employers learn from the recent FCA case to ensure they remain compliant?
Implications of the FCA case
The FCA case provides employers with the confidence that if they have a business reason not to offer home working, as long as they follow a proper process and procedure, staff will not succeed in their claims.
In this case, the tribunal held that the FCA had identified and proven that if the claimant was able to work from home, there would be a detrimental impact on the quality and performance of her work and identified weaknesses in allowing her to work remotely.
They stated that detailed thought had been put into the consideration of her flexible working request. And the FCA had shown why turning down the request was justified.
If you are looking to get employees back to the office … you must do this in a certain way to avoid claims
Steps for employers looking to return staff back to the office
If you are looking to get employees back to the office, fully or partially, you must do this in a certain way to avoid claims.
1. Review contracts
First, review the contractual position for each member of staff the change will affect. Their contracts may specify their place of work or include a mobility clause, allowing you to dictate or change it.
There may also be policies in place, which you can reference in support of your decision, such as flexible working or home working policies.
2. Consider custom and practice
However, contracts may not provide a definitive answer. You will have to consider how the agreement for remote work was initially made and how long it has been in place.
Regardless of what is contained in contracts, actual working arrangements may have become part of a contract by what we call custom and practice. This means it could be implied that your employee’s place of work is at home, or a mixture of home and office.
Contracts may not provide a definitive answer
3. What’s your process?
Once you have established whether you have the right to make a change, you need to decide on the process that you will follow in consulting or informing staff about it.
These changes are better received with adequate notice. If you are changing an individual’s terms and conditions, then you should check contracts to check the minimum notice periods that are required.
3. Provide notice and ensure good communication
If there is no notice requirement, employees should be given as much notice as possible.
Good communication is vital. This means explaining why the change is needed. Also, how the return to the office will have a positive impact on the business.
4. Right to request
Employees can make a flexible working request to change where they work. Recent changes allow employees to request flexible working from day one of their employment. Previously you needed to have 26 weeks continuous service.
They can also make up to two flexible working requests in any 12-month period. Previously it was only one request. Employers also need to decide on a request within two months of the request being submitted. The previous time frame was three months.
All of these will be hugely beneficial to any employees wishing to make a flexible working request. Yet I don’t think the new changes will go far enough to make a huge impact. This is because they mainly affect an employee’s right to request (from day one and twice in any 12 month period). Not the way in which employers should handle the request.
Good communication is vital
5. Consistency and consideration are key
In short, any applications should be dealt with in the same way they were before. Whilst businesses may need to prepare for an increase in requests, the way in which they look and consider should be the same as before.
This means giving adequate consideration to the same, meeting with the employee to discuss what they want and whether they can accommodate what they are asking for and then providing a decision in writing.
6. Reasonable reasoning
If an employer is turning down a request, they must justify it using one of the eight statutory reasons.
These include extra costs to the business, an inability to recruit staff to cover or an inability to meet customer demand.
7. Briefing and training
Employers should ensure that any flexible working policy reflects the changes. They must also make sure that their HR and management teams are briefed on them.
Any employers who do not currently have such a policy in place may want to use the opportunity to do so. It may be worth putting training in place so that their staff are adequately equipped to manage any requests.
