April 19, 2021

Volume XI, Number 109

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April 16, 2021

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Legal Developments Webinar 23 February – your follow-up questions answered, Part 1 (UK)

Thank you to all those who signed up for our “Employment Law in 2021 and Beyond” webinar on 23rd February.  Over 400 people dialled in for the session, so our profuse apologies but maybe little wonder that we did not get to answer all the questions raised.  As promised, here are a couple of the answers, with more to follow soon.

  1. Is there any indication that the Government is planning to repeat the holiday carry over approach they introduced last year?

No, nor do we think that this is at all likely.  Even though a quick google search for “seaside holiday in the UK” suggests that it would currently be easier and in fact cheaper to find accommodation in Monte Carlo than Bournemouth, the Government is likely to take the view that the success of the vaccination programme and the gradual return to normality which that will permit will be enough to allow people to eat up untaken holiday balances from 2020 over the remainder of 2021 and 2022 without further changes to the law.

  1. What is the best approach to dealing with increasing numbers of requests to become contractually remote workers?

A request to vary one’s place of work to more (or all) days WFH is at its heart a flexible working request, even if not phrased expressly as such.  It is up to you whether to force it to be made as a formal flexible application.  If you think you can grant it without doing so, go ahead, but if you envisage any difficulty with the request, then it may be better to ask the employee to make it formal, since that will mean that another request cannot then be made for a further 12 months. Equally, that places a greater burden on the employer to go through the right thought-processes in terms of whether it is practicable to grant it but that is no bad thing if the request is likely to become contentious.

You can find many more possible considerations in our earlier post here, but underlying them all is a simple set of questions which the employer must be in a position to answer as a condition of proceeding:

  • Will the arrangement sought by the employee work for you?;

  • If it won’t work, why not (and how far can you prove that)?;

  • If it won’t work in the form requested but could do so if amended, what changes would be necessary?; and

  • Can we reach agreement with the employee on those alterations?

A key point to have in mind here, although it sounds deplorably uncaring, is that there is almost no part of the flexible working regime which depends on the reason for which the remote working is sought by the employee.  It is irrelevant, for example, that your employee may genuinely be anxious about using public transport with others, or is living with someone clinically vulnerable or fears contracting Covid in the workplace on the one hand, or has simply rediscovered the joys of not commuting on the other.  The remote working arrangement can either be made to work for you or it can’t.  If it genuinely cannot, having discussed it with the employee and explored with him/her whatever alternatives and compromises in your position you can, you are fully entitled (sensibly, obliged) to say no, irrespective of the urgency and genuineness of the employee’s need or wish to remain WFH.

Doing otherwise may buy you a quieter life in the short-term, but you will also generate a world of grief and flak further down the line when the strains and tensions which necessarily arise from an unsuccessful remote working arrangement widen into cracks and then finally crevices in the employment relationship.  If you can’t bring yourself to say no outright then it may be best to make your yes the subject of an express and finite trial period. That way you buy everyone time to try to make it work (not just you and your employee but also any affected colleagues) without committing yourself too far if in practice the arrangement lives down to your expectations.

The obvious difficulty in saying now that a permanent WFH arrangement won’t work is that this may come as news to an employee who has been doing it for a year without prior complaint from you.  The burden is squarely on the employer to demonstrate why the arrangement requested won’t work.  This is therefore the time to be very clear both in your own head and with the employee as to what has changed (or is expected to change) to make that which was viable no longer so.  Is it that specific and demonstrable operational issues have arisen (even though you didn’t mention them); that you have lived with second-best while you had no choice, but now you do; that WFH while everyone else was doing so sort of worked, but it won’t when everyone else is back in the office; that the reopening of the economy requires all hands on deck in a way not needed over the past 12 months?

If and when the remote working arrangement is agreed, whether via a formal process or not, do ensure that your new remote working arrangements are suitably documented, clearly setting out the conditions on which you granted that consent. They may just be a continuation of the status quo or they may reflect the benefit of your year’s experience of WFH and so include the refinements to it which you reasonably regard as necessary to make it work all round.  Remember that the shift to WFH is a contractual change, permanent unless agreed otherwise, and therefore that there must be as little room for argument as possible around the terms applicable.  This applies both as to the ground rules for how the remote arrangement will work  and how you may wish to end it – see here.

 

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© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 61
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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...

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