WFH - a new battleground in culture wars?

The Panorama episode last night on remote working covered all the relevant issues from both sides, but didn't come up with any solutions.  Likely because it's a tricky one.  We've been advising employers who are looking to either encourage or mandate that staff return to the workplace on a full-time basis, focusing on how to deal with the anticipated grievances and statutory flexible working requests ("FWR") and to mitigate against claims.

The difficulty employers face is that in most cases they may not have grounds to refuse FWR based on 1 of the 8 permitted reasons given that staff have been working from home since the pandemic.  IT systems, processes and structures have developed to better facilitate home-working in a lot of sectors.  A request from above for everyone to be in the office isn't sufficient justification alone.

The government proposes further reform to the flexible working scheme by introducing a test of reasonableness where an employer refuses a statutory FWR, requiring an employer to state the ground(s) for its refusal and why it considers it is reasonable to refuse the request.  There are also plans to set out the steps an employer must follow to comply with the requirement to ‘consult’ with the employee.

In terms of some practical steps, employers should look to get their ducks in a row:

• Is your current policy up-to-date and fit for purpose?  Is any related guidance or template application forms up-to-date?
• Are managers trained on how to deal with flexible working requests?
• If you anticipate a flurry of applications, you may want to request that all informal and formal requests for flexible working are forwarded to HR.  HR can then keep abreast of all the applications that have been made (a spreadsheet would be useful, particularly if claims are brought and comparators raised), diarise the deadline for a response, keep track of meetings, ensure the same procedure is followed and evidence obtained (e.g. when someone refers to a disability or carer responsibilities, or travel issues etc.), and generally prevent any procedural hiccups.  
• Consider allocating a small number of trained managers to deal with the applications, with another more senior manager reserved to deal with any appeals.  This will help to ensure consistency in approach and the decision-makers will have knowledge of the other complaints and outcomes, and any specific requests which need to take precedence.  
• While requests should always be dealt with in the order they are received, look out for any requests that engage other obligations, for example under the Equality Act (those with disabilities, or who are carers, or those with childcare issues).  The employee may not be overly explicit in their application but there may be circumstances which raise red flags.  If there are a number of requests which engage the Equality Act, you may need to try and reach a compromise with each in order to resolve these (particularly where they are in the same team), but otherwise they should be dealt within in the order they are received.   
• You may have some applications where alternatives are discussed and you reach an agreed solution that doesn’t involve a permanent change to the employee's contract.  E.g. the change may be time-limited after which the employee reverts back to the normal working pattern.  
• Even where someone has exhausted the number of FWR they can make in the 12-month rolling period, there is still a risk of a grievance being raised so be prepared. 

Working from home is 'not proper work', says ex-Asda boss - BBC News