July 27, 2021

Volume XI, Number 208

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July 27, 2021

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July 26, 2021

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Future of the Workplace webinar 18 March – follow-up questions answered, Part 4 (UK)

Here are two more questions from our webinar a week or so ago in relation to the process of bringing employees back to the workplace.  They echo a number of others in suggesting that employers anticipate a high level of resistance to a return to the office, at least in the short term, and are not always clear as to their rights to force the issue.

7. What if the employee feels commuting puts them at risk?

8. What if the employee declines to return on the grounds that he is “vulnerable” but does not provide any evidence in support?

These two questions have their answer in the same basic issue – is it practicable for the employee to work from home, where that is assessed by reference to the eight reasons in s80G(1)(b) ERA 1996 for which it is lawful to decline a flexible working request?  If it is, then that is what he should be allowed to do.  Remember that a request to WFH is essentially a flexible working application at heart and that the flexible working regime does not require the employee to have a good, objectively reasonable or even truthful basis for his application.  Indeed, as a rule, the employer will be better off not asking why WFH is requested, since that implies that it will be taking the answer into account in its decision.  That gets it into some very unattractive value judgements about the respective merits of its employees’ reasons, fraught with discrimination risk, where the only legitimate judgement is actually on the strength of its own reasons to say yea or nay (or maybe – nothing wrong with an agreed trial period here if it is in any doubt).

The converse is also true.  If by the nature of your employee’s work it is not practicable for him to do it from home, then you can and should refuse, and the legitimacy and urgency of his reasons is again largely immaterial.

Both those positions must be seen through the prism of government advice to “WFH if you can” until 21 June at the earliest, when current guidance is anticipated to be revised.  At present there is almost certainly a material gap between what counts as “if you can” for these purposes and what would entitle the employer to refuse a flexible working application in more normal times.  In particular, “if you can” is a much lower bar for the employee and will entail an employer putting up with some level of adverse impact on customer service, output, quality, etc., which the flexible working regime would not require.  Therefore the hurdle of impracticability which the employer needs to apply in both these circumstances will very likely become easier to get over from June.

That is obviously true not just legally but also cosmetically.  Until June you are technically flying in the face of government advice.  That makes it harder to make a case that the return is necessary, but also the PR consequences if you do insist and the employee becomes ill or dies as a result (or alleged result – mere matters of actual causation will not trouble the jury in the Court of Public Opinion) will be much worse.  After June, however, the government will find it hard to maintain the advice to stay off public transport while at the same time encouraging people back to work in otherwise flat–lining city centres.  Therefore from June or thereabouts, while your employee may still be anxious about commuting, that anxiety will no longer have government backing and so his arguments for WFH on that basis will become much weaker.

And what about your chap who says he is medically vulnerable but won’t provide the evidence?  It would be very easy to obtain if he doesn’t have it already. If that is the reason he relies upon, he should sensibly expect that his employer might want to verify it, even if he didn’t actually need a reason at all to justify a request to continue to WFH.  Which takes us to a question for another time – is lying to your employer still gross misconduct even though you had no need to do so and it is not just entitled but in most cases obliged to ignore it anyway?

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 90
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About this Author

David Whincup Employment Attorney Squire Patton Boggs Law Firm
Partner

Following 10 years at a Magic Circle firm, David has been head of our London Labor & Employment Practice since 1994.

His expertise gained from over 30 years as a specialist employment law practitioner cover a wide variety of employment-related issues, including individual and team recruitment issues, policy and contract drafting, disciplinary and grievance procedures, individual and collective redundancies, the defence of employee discrimination and dismissal claims and other litigation, whistleblowing, employee health, data protection and matters surrounding confidentiality and...

+44 20 7655 1132
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