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Post-Lockdown Flexible Working, Part 3 — The Big Questions (UK)

If we are right to think that the unravelling of lockdown will be accompanied by a sharp increase in the number of employees requesting to work from home, then many employers will shortly start to face some serious posers in relation to the flexible working scheme. These are not new questions, but will be thrown into starker prominence by the sheer number of requests you may have to deal with at the same time. Of course you should grant them where you can, but what if you are unsure?

Does granting one home working request set a precedent for others?

Assuming that allowing employee A to work from home did not lead any important wheels to fall off, does this mean that his/her colleague B, doing the same job and seeking the same arrangement, must necessarily get a green light also?  Yes and no, but mostly no.

A’s success means that you cannot argue that at an “principle” level the role cannot be performed remotely.  But that is not the end of the matter.  If external circumstances (customer demand, technology, overall staffing levels, etc.) have changed, that may alter the equation for B.  It might be that while you can function with one of a team of five at home, once you get to two or beyond, the office support structure seems to break down.  Maybe A is a real star who you will know will go out his/her way to make the arrangement work, while B is a minimum-effort clock watcher.  For reasons as yet unexplored, the eight permissible reasons for declining a flexible working request do not include that the employee in question is known only to work when cornered.  Therefore you would have to rely instead on an anticipated detrimental impact on quality or performance.  If you have objective evidence of this probability through prior performance management measures or patchy appraisal reviews for B you should be on reasonable ground in declining.  Otherwise the precedent set by A means that you may be safer to agree, but expressly subject to a trial period long enough to give B a chance to live down to your expectations.

I have two live flexible working applications which are inter-dependent – I can grant one but not both.  Which do I go with?

With one exception, the application you received first.  That is an objective method of selection and not easily open to allegations of discrimination (see below).

The one exception is where you believe the later application to amount to a request for reasonable adjustments by an employee who is disabled.  It is the nature of your obligations to make such adjustments that some disappointment or inconvenience may be occasioned to other employees.  Therefore you would then be entitled, probably required, to grant that one in preference.  But NB this will only be the case where the first request is still undecided – if it has already been agreed and so become contractual, you are under no obligation to unwind it to accommodate the disabled employee.  In addition, this duty only applies where granting the home working would help reduce the disadvantage to that employee caused by his disability. If it has no impact on that but he just fancies more time at home, that priority is lost.

Should I ask why each employee wants to work from home?

Acas says that employers should take an employee’s personal circumstances into account when making their decisions, but other than in respect of potential reasonable adjustments, this is potentially very dangerous ground.  Bear in mind that the employee is not obliged to give any particular reason for making the request, and also there is nothing in the eight permissible grounds for rejection which relates directly to the personal circumstances of the individual. They all concern the impact on the business, not the employee.  Therefore it cannot be intended that the employee’s motivation is a legally-necessary consideration.  If you ask for reasons nonetheless, it will be assumed that you do so for a purpose, i.e. that the answer will in some way be relevant to your decision. The problem with taking those circumstances into account is that employers will necessarily find themselves making some very unattractive value-judgments on matters easily converted into discrimination allegations. Why is my seeking time working at home to look after elderly parents less compelling than her doing so for childcare? Why is my fear of contracting COVID-19 on the train any less pressing than his?, and so on. Remember that positive discrimination is still discrimination.

By all means add a box to your flexible working application form to tick if the employee seeks the arrangement as a reasonable adjustment, but otherwise (and fully accepting that it sounds a little mechanical and uncaring) you are legally just much better off not knowing.

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 164

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About this Author

David Whincup Employment Attorney Squire Patton Boggs Law Firm
Partner

Following ten years at a Magic Circle firm, David has been Head of our London Employment practice since 1994. His expertise gained from twenty-five years as a specialist Employment Law practitioner covers a wide variety of employment-related issues, including in particular 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...

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