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With many of the COVID-19 restrictions being lifted in recent weeks, lots of businesses are planning to return staff to the office. However, employers are mindful that the working world has changed considerably. The flexibility around working patterns that had started in many industries were accelerated significantly by the pandemic in those workplaces and everywhere else. Those measures have created an expectation by many employees that the flexibility will continue post-pandemic.
Indeed, many employees have taken to the countryside, buying new homes further from their offices with the expectation that remote, hybrid and/or flexible working will continue, making previously long and non-compatible commutes suddenly manageable.
From what we can see, very few employers are planning a return to office ‘full time’. And preferences of employees also vary greatly. Some employees have preferred to work almost exclusively remotely, whilst others have been keen to return to the routine of the office and the social aspect of working (geographically) close to their colleagues.
The pros and cons of remote working and flexibility have been hot topics of discussion in offices, the media and wider public life over the last few years; the most notable being:
Of course businesses have been adapting to improve engagement and communication with staff working remotely to offset the cons. Many businesses now see a mixture or hybrid approach as their future.
Businesses are concerned about how to implement any return to the office (even for a portion of the working time), particularly with employees who want or expect a fully remote working arrangement.
Most employers who have facilitated flexible and remote working have made it clear that those are temporary measures in line with pandemic restrictions. If there is any doubt on this, and the Employer believes there may have been a permanent variation of employment terms for remote or hybrid working that they wish to now change, they should consider our previous article on How Employers Can Change Terms in Contracts of Employment.
Where employers are acting in line with existing contractual terms by returning staff to the office, what are the legal options for an employee who doesn’t wish to return?
In this scenario, an employee can make a Flexible Working Request. This can include a request around working hours/ times and location (between home and the office).
Under Part IXA of the Employment Rights (Northern Ireland) Order 1996 a qualifying employee (an employee employed for at least 26 weeks and not an agency worker, unless they are an agency worker returning from a period of parental leave) can submit a flexible working request. Under Article 112G of the Employment Rights (Northern Ireland) Order 1996 an employer has time periods within which they must hold a meeting (within 28 days of the request) and issue a decision (within 14 days of the meeting).
Employers can only refuse a flexible working request on one (or more) of the following statutory grounds:
These grounds are quite helpful for employers adjudicating such requests.
Employers must facilitate an appeal process for employees (within certain time limits provided in the legislation). Employees are also entitled to be accompanied at meetings by a Trade Union Representative or colleague.
Failures to procedurally deal with the requests pursuant to the legislation can result in a claim for up to 8 weeks’ pay. Detrimental treatment on foot of an employee submitting such a request can also give rise to a claim. In some cases employers could expose themselves to claims of breach of contract or constructive dismissal when dealing with these requests, not to mention discrimination claims if protected characteristics are involved.
Of course, in a practical sense, employers also need to be mindful that in a labour market where skilled staff are in short supply, they don’t want to lose key employees to competitors so they should be keeping an eye on what is the industry norm. Employers who are compelling full-time return to the office where that is unusual and not being adopted industry-wide risk losing key staff to competitors or – at the very least – damage could be caused to the working relationship.
We recommend taking legal advice immediately upon receipt of a Flexible Working Request to ensure compliance with the Regulations and limit exposure to claims.
If you would like to seek further information about any of the issues raised in this article, please contact our Employment team at Cleaver Fulton Rankin.
This article has been produced for general information purposes and further advice should be sought from a professional advisor.