Flexible working and the hybrid model: What are the risks when managing homeworking requests?

Author: Darren Newman

The pandemic has generated a greater appetite among employees for remote and/or hybrid working patterns. Consultant editor Darren Newman explores how employers can strike a balance between advocating a physical return to the workplace and satisfying staff who are pushing to spend more time working from home.

The Government's agenda for employment law includes reforming the right to request flexible working. The Conservative Party manifesto included a promise to "encourage flexible working and consult on making it the default unless employers have good reasons not to".

This seemed to suggest that rules would be introduced making it harder for employers to say "no" when employees ask to work flexibly. The consultation that ran from 23 September to 1 December 2021 does not in fact go that far - but it does suggest that the current 26-week qualifying period for the right to make a request should be abolished, opening the right up to all employees.

I have always had a rather ambivalent view of the right to request flexible working. I cannot get around the idea that the right to make a request does not amount to much if there is no right to have that request granted - or at least a requirement for some objective justification for any refusal.

The current right does not amount to that. There must be a reason for the refusal and the reason must be based on accurate facts. But the eight potential reasons for refusing a request are drafted so widely that it is impossible to think of any business reason that does not fall within them.

Fundamentally, there is no requirement for the employer to show that its refusal is, in itself, reasonable. The latest consultation proposes no change to that position.

Risk of indirect discrimination

However, what is always lurking behind the right to request flexible working is the potential for a claim of indirect discrimination if a request is unreasonably refused. If the request is made to allow the employee to better balance work and childcare responsibilities, a negative response from the employer can be seen as something that causes a particular disadvantage to women who, on average, are much more likely to have to adjust their working time for this reason than men.

To avoid a finding of indirect sex discrimination in a subsequent tribunal, the employer would have to show that its refusal was a "proportionate means of achieving a legitimate aim". This is a standard of objective justification that goes way beyond that set out in the statutory right to request flexible working.

Although the context in which we tend to think about flexible working is a reduction in working hours to balance work and caring commitments, the statutory right is wider than that. A flexible working request is a request for a change to working hours or working times - but it can also be a request to work from home.

When first introduced, the right to request flexible working had to be for a specific reason to do with providing care for a child. However, there is no longer any need for the employee even to give a reason for the request. Any employee who wants to work from home, for either the whole or any part of the week, has the right to request this and the employer must respond accordingly.

Compromise needed on both sides

A positive change that the Government's consultation proposes is that, rather than simply refuse a request, the employer should consider whether there are any alternative arrangements that could be made. This makes sense and wise employers will do this already.

The statutory scheme makes the unreasonable assumption that the employee's proposal for flexible working will be perfectly formed and can either be adopted by the employer without amendment or must be turned down altogether. But a successful flexible working arrangement is best arrived at after a conversation between the employer and employee about what works best for both parties.

Hybrid working: getting the balance right

Currently, a lot of attention is being paid to the concept of hybrid working, where the employee's duties are carried out partly at home and partly in a designated workplace.

There is nothing legally complex about this - the parties just need a clear agreement as to what the arrangement actually is. Hybrid working might be a good compromise for an employer worried that an employee based entirely at home may become detached from the business. Similarly, an employee may value the opportunity to meet colleagues in person at some stage during the working week.

However, a hybrid working arrangement is likely to involve some period of negotiation between employer and employee before the right balance between home and workplace is agreed upon. A requirement for the employee to map out the details of the arrangement and then submit a full flexible working request for a simple "yes" or "no" answer is unlikely to be the best option.

Homeworking requests require careful consideration

What remains to be seen is whether flexible working requests centred on homeworking or hybrid working have the same potential for an indirect discrimination claim if no agreement is reached. While it is well established that a refusal to accommodate part-time working causes women a particular disadvantage, the position with homeworking is less clear.

Following the pandemic all sorts of people will have enjoyed the benefits of homeworking and may want such an arrangement to continue. Is there any reason to think that women are more likely than men to need such an arrangement?

I think there probably is.

For many people, the advantage of working from home is not just the comfort of familiar surroundings or the avoidance of a stressful commute. Home is likely to be closer to a child's school or nursery than the workplace and many homeworking arrangements will make it easier for parents to pick up or drop off children and deal with any emergencies that may occur.

It is not much of a stretch to imagine that women are more likely than men to need to change their working arrangements accordingly. Whether that will mean that an insistence on returning to the workplace puts women at a "substantial disadvantage" will need to be determined by the courts.

But employers should certainly avoid simply going through the motions when faced with a flexible working request involving some degree of homeworking. An employer that genuinely tries to make such requests work is likely to be well placed if any eventual refusal needs to be justified as a "proportionate means of achieving a legitimate aim". Such an approach is also more likely to lead to a stable and motivated workforce.