Working Practices for the ease of Lockdown in June

At present, employers are considering how best to manage the post-pandemic world of work from 21st June 2021.

According to the Office for National Statistics, during the first lockdown, 86% of the workforce worked from home to some extent. In the second lockdown, almost 40% of workers were mainly working from home. Recent research suggests that 88% of employees who worked from home during the lockdown would like to continue doing so in some capacity in the future, with almost 50% of employees wishing to work from home some or all of the time. These statistics indicate that there will be strong demand for some form of homeworking from many employees as we move out of the pandemic.

Many have indicated that “hybrid” working policies may be implemented, under which employees will work from home and the office. With fewer employees in the office at any one time, this approach allows you to save on overheads whilst providing greater flexibility to your workforce.

Employers seeking to require employees to work from home for a certain proportion of the week should bear in mind that homeworking may in fact be a disadvantage to some; they may not wish to do so once it is safe to return to work. By way of example, those in shared accommodation (such as younger workers, who are statistically more likely than their older peers to be sharing their living space), may have difficulties working from home. Similarly, those with mental health difficulties may find the isolated nature of homeworking challenging.

You should be aware that some employees may seek to argue that the imposition of such changes is indirectly discriminatory (for example, by reference to their age or disability), and that any mandatory requirement to work from home is likely to amount to a change in contractual terms which will require their consent (unless there is a clear contractual right to require employees to work from home).

Not all employers will wish to allow their employees to work from home (or will only wish to allow homeworking in limited or exceptional cases). You should be mindful that employees with at least 26 weeks’ continuous service have a statutory right to make a flexible working request. Under the statutory regime, employers can only reject a request for a specified reason, including the ability to meet customer demand, detrimental impact on quality of work, and cost. During the pandemic, many employees demonstrated that they can work effectively and profitably from home and employers may therefore find it harder to justify rejecting a flexible working request for one of these reasons. You should be aware that, if you “unreasonably” refuse a request, you could be ordered to pay compensation by the Employment Tribunal.

You may also face discrimination claims by employees in relation to any refusal to allow flexible working (for example, from women with childcare responsibilities, who may allege that they are disproportionately disadvantaged by a policy that does not allow flexible working when compared to their male colleagues). You should be mindful that the government’s flexible working task force recently recommended that flexible working should be the new “default position” for all employees, and the Government has indicated that it agrees with this view. Legislation to that effect may well, therefore, be introduced in the future.

How such a rule will work in practice remains to be seen, but it could limit the ability of employers to require staff to work from the office.

Bearing all of this in mind, you would be well advised to consult widely with your employees before implementing any policies with regard to homeworking, and to keep a close eye on any forthcoming changes to the right to request flexible working.