Should working from home be a legal right?

As the government moots legislation to create a default working from home option, Asha Kumar and Angharad Harris outline how to approach flexible working requests

The news that the government is considering legislation to create a default working from home option has sparked a flurry of press coverage. While an official government spokesperson subsequently stated that there would be no legal right to work from home, the discussion has put into the spotlight a live issue that employers need to grapple with now. 

The starting assumption appears to be that society will not return to the pre-pandemic office-based working model. Instead, the expectation is that employers could look to embrace a hybrid model allowing for a combination of home and office-based working. Anecdotally, there appears to be a 2/3-day office/home work split being mooted as the favoured hybrid model.

However, employers will have different needs and experiences depending upon their business and sector, which will need to be assessed in conjunction with significant employment and health and safety law considerations. 

The fact is that every employee already has the statutory right to make a flexible working request after 26 weeks' employment service. Legally, all requests (including any appeal) need to be determined within three months from the request being made unless an extension has been mutually agreed.

The employer’s obligation is to deal with the requests in a reasonable manner. This includes assessing the advantages and disadvantages of the application, meeting to discuss with the employee the request as soon as possible after receipt and providing an appeal process.

The employee’s written request needs to specify what they think the effect would be of the requested change on the employer and how, they believe any such effect might be addressed. From the employer’s perspective they need to balance the effects of a change in working pattern for the employee against any adverse impact on the business.

Firms can only reject the request on one – or more – of the eight business grounds specified in the legislation. 

A complaint can be made to the employment tribunal including where the employer fails to deal with their application in a reasonable manner or bases its decision on incorrect facts. In this regard, employers should also take note of the interrelationship between flexible working requests and other forms of statutory protection, in particular discrimination whether that is due to childcare commitments, religious requirements or in relation to request for reasonable adjustments related to disability.

Going forward, irrespective of the outcome of any government’s flexible working proposals, employees will want to create certainty around their working arrangements and where hybrid working models are not offered as the default position, we anticipate that employers can expect to start receiving many formal flexible working requests. 

In anticipation of this, employers should carry out their own analysis now of how the home working arrangements have worked and what issues have arisen or may arise going forward, whether that is in terms of contributing to home costs like bills and insurance or providing equipment. 

From a policy perspective, employers may wish to be consistent and state that there is no minimum service qualification before a flexible working request can be made and perhaps even consider putting together a tailored template with the types of additional information that they may require the employee to provide based on their practical experience of working from home during the lockdown period given that this will form an important part of the employer’s analysis. 

What is clear is that employers would be well advised to assess those requests with a new lens as employees will be quick to cite positive experiences gained from home working during the pandemic. 

Asha Kumar and Angharad Harris are employment law partners at Keystone Law