New flexible working rights: not the huge stride it appears to be

"Employers can require staff to return to workplaces even where they have been working productively during the pandemic. This is because the place of work in contracts remains as the workplace and working from home has been a temporary solution during the pandemic.

Staff cannot assume they have a right to work from home even if they have shown that they can be productive. Parties can agree to change the place of work and many employers may face an increase in applications for flexible working on this basis.

While there is no automatic right to work from home, employment legislation provides a number of protections. Currently, employees with at least 26 weeks' service have the right to ask for flexible working which can include working from home for some or all of the time.

Employers are required to consider requests in a reasonable manner and can only refuse a request for one of the eight business reasons permitted by the legislation:

• The burden of additional costs

• A detrimental effect on the ability to meet customer demand

• An inability to reorganise work among other employees

• An inability to recruit additional employees

• A detrimental effect on quality

• A detrimental effect on performance

• Insufficient work at the times when the employee proposes to work

• Planned structural changes

“Whilst the Department for Business, Energy and Industrial Strategy has recently announced plans to potentially extend the right to request flexible working, it should be noted that the proposal only removes the 26-week qualifying service period, allowing all employees to make a request from day one.

“It does not confer any greater right on employees to work flexibly, and employers will still have the ability to reject requests in the same way they can presently. This is a step in the right direction but perhaps not the huge stride that it first appears to be.”