Working from home in a Pandemic

Written by Martha Mitchell
24 September, 2020
Working from home in a pandemic

On 22 September 2020 Boris Johnson said: “we are once again asking office workers who can work from home to do so.” He did not say that office workers must work from home, merely that if it’s possible, they can work from home.

This is very different to the instruction to stay home which was received in March.

It’s likely to create complex issues for employers with:

  1. Employees who believe that they should be working from home
  2. Employees who refuse to work in the office
  3. Employees who submit a flexible working request.

Here, we address each issue in turn.

Employees who believe they should be working from home

Employees should only work from home “if they can”. If your business requires employees to be in the office (for all or some of their working days) you can request that they come in to work. Rather unhelpfully, the government have not produced any guidance to help employers with the definition of “work from home if you can.”

Our view is that so long as you (as an employer) acts reasonably, you can require some office work. When a whole team is working from home, employees miss out on general chats and understanding the going-ons within the company.

Firstly, your premises should be Covid secure.

Secondly, you need to justify why you require some office presence. Do you require a high degree of team working? Have you just recruited and need to induct staff? Do you require more constant communication than scheduled video calls?

If so, you can simply inform your employees that you need them to work from the office.

Employees who refuse to work in the office

If your employees refuse to work in the office then you can consider disciplinary action IF you have properly evidenced why they cannot work from home (including the business reasons why).

Employers must be very careful that you do not subject an employee to a detriment if they have complained about their safety, their colleague’s safety or the workplace safety.

If they are refusing to work from home on the basis of their misunderstanding of Boris’s instruction then you can discipline for this.

Flexible working request

Many employees are already saying “if I’ve worked from home since March, why can’t I carry on?” Even before Boris’s latest statement we were expecting to see an influx of employees requesting to make home-working permanent and this raises a huge red flag for employers who do not recognise it as a flexible working request.

If an employee has 26 weeks continuous service and they ask to work from home, this is actually a flexible working request. If they’ve not made a previous flexible working request in the last 12 months the employee is obliged to consider it.

When considering a request employers need to think about two elements: 1 – reasons to reject; 2 – the process.

Reasons to reject

Employers only have 7 fair reasons to reject a flexible working request

  • additional cost to the business;
  • impact on the ability to meet customer demands;
  • work cannot be re-organised among existing staff;
  • inability to recruit additional staff to cover the work;
  • detrimental impact on performance;
  • insufficient work to be done in the hours the employee is requesting;
  • planned structural changes

Rejecting a request is likely going to be much harder when home-working has been accommodated since March. We should still be able to help employers to properly justify one of the 7 reasons for rejecting a request and we can explain what type of evidence you’ll need.

The process

The process for dealing with a flexible working request is governed by the Acas Code of Practice on flexible working requests  (please note that the process is different in Northern Ireland).

  1. Acknowledge receipt of the request
  2. Discuss the request with the employee
    • Consider the request reasonably
    • You may arrange a meeting to discuss it and if so, you should give the employee the right to be accompanied by a colleague
  3. Provide an outcome. If rejected, evidence why and provide and a right of appeal
  4. Deal with any appeal
  5. Complete all of the above within 3 months of receiving the request

Any employee who issues a claim in the employment tribunal for failure to deal with their flexible working request properly can be awarded up to 8 weeks pay, capped at £538 per week (£560 in Northern Ireland)

The maximum level of compensation is 8 weeks’ pay – although there is a statutory cap on this of £538 per week (or £560 per week in Northern Ireland). So it’s important to get it right!

For applications made in Northern Ireland there is a separate award of up to 2 weeks’ pay where an employer fails to allow you to be accompanied at a meeting.

Finally, employers should be aware that they cannot subject an employee to a detriment or dismiss them for any reason relating to their flexible working request.

For more advise on these matters, please get in touch. 

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