Flexible working: Can we go back on arrangements in future?

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The pandemic rushed many employers into permanent home working arrangements
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The unprecedented shift towards home and flexible working brought about by Covid-19 has led many employers to announce permanent new arrangements. But what are the legal implications of doing this, asks Jonathan Mansfield?

Employees and employers alike have had varied attitudes towards flexible and remote working during the Covid-19 crisis. Many younger workers living in small city centre homes have long been keen to get back to the offices. Others have taken to remote working like ducks to water.

As for employers, some were resisting home working prior to the most recent lockdown announcement, particularly in areas such as sales, despite a government requirement to work from home where possible.

Others, prompted by the pandemic, have embraced the concept fully, but have discovered that it brings its own management and legal issues.

These include training and integrating new and less experienced members of staff, concerns for wellbeing of all employees and the need to review corporate approach to performance management, among other challenges.

As a result, some of the employers that have moved over to flexible working on a permanent basis may be experiencing “buyer’s remorse”.

Can we reverse arrangements?

Unfortunately, reversing the changes that have already been introduced can pose legal headaches.

Migrating to and giving up flexible working both require express agreement, either written or indicated by the conduct of the parties. Consultation is the first stage in the process. If employees resist going back to pre-Covid arrangements, the employer might have to decide to force the issue.

Sometimes this would involve dismissing the employee and offering to re-engage them on the new (non-flexible) terms and conditions. A potential defence of “some other substantial reason” is available to resulting unfair dismissal claims.

However, there would need to be clear business reasons for this change. The evidence of effective performance during the period of flexible working may be used to argue that the dismissal is outside a range of reasonable responses for an employer.

If the change applies to more than 20 employees, the employer may have further obligations. Given that dismissal is a possible outcome if employees refuse to follow the employer’s decision, the obligation to consult with representatives for 30 or 45 days could arise.

Discrimination claims

Another important legal consideration is the potential of an indirect sex discrimination claim.

This can arise if a provision criteria or practice is applied which puts an employee at a particular disadvantage compared to others because of their protected characteristic.

Since women are statistically more likely to be the main carers for children, it is likely that a tribunal would accept that a woman forced to give up flexible working suffered indirect discrimination.

A potential defence to justify the discrimination is to argue that it is a proportionate means of achieving a legitimate aim. One can claim that the flexible working provision in practice has an adverse effect on the business. For example, if prior to lockdown, face to face meetings with clients at the office was a key part of the role, this could be a compelling argument. However, a tribunal will scrutinise the facts as client expectation may have changed with the pandemic.

Performance management

Less precise arguments about performance management will not be readily accepted. A potential killer argument for representatives of employees in this situation will be that it worked perfectly well during the lockdown.

This is why it is better for employers to be cautious in not committing themselves to a permanent change to flexible and remote working.
This does not mean that the issues will not come up in future even if no such permanent commitment is made.

Employees have a right to request flexible working if they have at least 26 weeks’ service. While the right is essentially procedural, it can be used as a “Trojan horse” to another claim such as indirect sex discrimination or for failure to make reasonable adjustments in the case of an employee with a disability.

Even where employers only agreed to temporary changes, they may well find themselves facing an increased number of flexible working requests.

Our advice would always be to use a flexible working procedure in as positive manner as possible both to think through business justification for refusing a request and also for exploring the possibility of agreeing a solution which suits both parties.

There is no reason to halt the long-term forwards march towards flexible working. Employers will have to act upon the advantages and downsides of flexible and remote working in terms of cost saving and productivity as well as manage multiple legal challenges.