Following the Coronavirus pandemic, more and more employees are seeking flexible work arrangements to fit around their personal commitments and obtain a better work/life balance. But what are the implications for UK employers?
Working from home
In some industries, many employers now operate a blanket hybrid or home working policy for many of their employees. However, hybrid and home working does not work for all employees or all workplaces, and there are still many employers who only consider hybrid / home working to employees who have made flexible working requests.
If the employer is considering adopting a working from home set-up or has approved a flexible working request, it should consider whether their terms of employment and associated policies permit employees to work from home or on a flexible basis in the first instance and properly cover all the issues that these new arrangements raise (such as change in place of work, change in approach to travel expenses, responsibility for insurance and equipment etc.). Contracts of employment and relevant policies should be amended if it is intended that employees should work from home on a long term basis.
It is also important to ensure that employees who work from home are not treated any less favourably than employees who work in the office to minimise the risk of a claim for discrimination, particularly if they are working part-time or working flexibly because they have childcare or carer responsibilities.
What is a flexible working request?
Currently, once an employee has been continuously employed for at least 26 weeks, they can make a request for flexible working under the statutory scheme. The employee can make a request for any reason.
In order for the request to be formal it must:
- Be in writing and dated on the day the request is made.
- Expressly set out that it is an application made under the statutory procedure.
- Specify the changes that the employee seeks and when the proposed changes should become effective.
- Explain what effect, if any, the employee thinks the change would have on the employer and how they consider any such effect could be dealt with.
The employee should also state whether they have previously made an application to the employer and, if so, when. Currently, employees can only make one flexible working request in any 12-month period.
Upcoming changes to the law
Employers should be aware of significant changes taking place soon. New legislation will be introduced shortly which makes the following changes:
- Allows employees to make two flexible working requests in any 12-month period.
- Shortens the timeframe for dealing with flexible working requests to just two months.
- Requires employees to consult with employees regarding the request if they are considering refusing it.
- Removes the requirement for the employee to explain the effect they consider the request will have and how it could be dealt with.
The Government has indicated that it intends to make the right to request flexible working a “day one” right for all employees (meaning that they will not have to wait 26 weeks before submitting a request). However, the legislation currently proposed is unexpectedly silent on this point, although it is anticipated that the Government will impose this change through secondary legislation.
Can an employer require an employee to work from home?
If an employee’s terms of employment already state that they can be required to work from home, then the employer can rely on this provision. However, if the employer wishes to impose home or hybrid working at a later stage or where the contract does not expressly allow home working, this may amount to a variation of the terms of employment, and it may then be necessary to obtain the consent of the employee.
Must the employer permit home/hybrid working?
Employees do not have an automatic right to work from home. However, if an employee makes a qualifying flexible working request, the employer may have a duty to reasonably consider it and inform the employee of its decision. There are only eight lawful reasons for rejecting a qualifying flexible working request, so employers may wish to seek advice prior to making a decision.
The employer should also carefully consider the employees reasons for making the request, and whether denying a request for home or hybrid working could amount to discrimination if the employee is treated differently to comparative employees or placed at a disadvantage by the decision and ,if so, whether this can be justified.
What if the employee wishes to work abroad?
Besides the practical issues surrounding overseas working, the employer needs to get local legal and tax advice to properly understand the implications. Employees may gain statutory employment rights in the country in which they are working. There can also be significant tax consequences for both the employer and the employee. The longer the term of the overseas assignment the more likely it will be that the employee will cease to be a UK resident for tax purposes (the employee’s nationality is not relevant when determining tax status) and the employer could be deemed to have an establishment in that country incurring corporate and employment tax and social security liabilities.
The employer should also consider whether changes to the employee’s terms of employment are required and the impact that working overseas may have on their pension entitlement.
What should you do if you wish to introduce a home working policy or have received a flexible working request?
Our team can help you to introduce a flexible working policy and/or a home working policy or advise you on your obligations and the procedure for considering a flexible working request.