The ‘right’ to work from home – separating fact from speculation

Although there are no firm proposals on the table, the media has been full of speculation that the government is planning to give employees the right to work from home.

The headlines regarding the introduction of a ‘legal right to work from home’ may seem to have come out of the blue but the government has long been committed to improving employees’ access to flexible working arrangements.

In this article, we’re going to separate the facts from media speculation.

 

The Taylor Review and The Good Work Plan

Matthew Taylor’s report ‘Good work: the Taylor review of modern working practices’ concluded back in July 2017 that “encouraging flexible work is good for everyone and has been shown to have a positive impact on productivity, worker retention and quality of work.” It was found to be particularly important to women and those with caring responsibilities and is seen as important in allowing these groups to participate fully in the labour market. It was a key recommendation of this report that as part of a review of the right to request flexible working, the government should consider how further to promote genuine flexibility in the workplace.

The government responded to this report in December 2018 with the publication of The Good Work Plan which set out their strategy for adopting the vast majority of Matthew Taylor’s recommendations. This included a commitment to set up a taskforce “to work with business to make flexible working a reality for all employees”. They also committed to considering “requiring all jobs to be advertised as flexible from Day 1, unless there are solid business reasons not to.” The taskforce was set up, but the pandemic meant that any consultation on how this could potentially work was put on the back burner. It is this consultation which is likely to be launched shortly.

 

What does the consultation propose?

This proposal would effectively turn the existing statutory framework for requesting flexible working on its head. At the moment employees have to request it and employers have eight wide-ranging business reasons upon which they can reject the request.

Although we’ve not yet seen the exact proposals the government is considering, this is likely to be a system based on the assumption that the role can be done flexibly and the employer having to show why this is not the case. However, it is unlikely that the government will move away from the established principle that it is up to employers to assess the needs and manage the running of their business and it’s probable that as long as the employer can show that adopting this flexibility in a role would adversely impact the business, they will have a wide discretion to exercise in this area.

Of course, the principles of default flexible working were put forward before COVID and from a practical perspective, it will now be much harder for employers to resist flexible working on the basis of the needs of the business – under either the current scheme or under new regulations – if home working has been in force for many months with no observable adverse effects.

The Flexible Work Taskforce

For many, it’s likely that some form of hybrid home/office arrangement will emerge, but this poses a fresh set of challenges. Earlier this year, the Flexible Work Taskforce was commissioned to do further work in this area and given two main objectives:

  1. Understanding and supporting the change to hybrid and other ways of working which are emerging because of the pandemic and
  2. Longer-term, understanding whether there is more to be done to promote ‘ad hoc’ or non-contractual flexible working

It seems that these are the key areas the government is keen to promote rather than simply giving employees an absolute right to work from home.

Post-COVID homeworking

It’s important to remember that the current guidance on working from home is of course an entirely separate matter from the statutory framework of rights around flexible working. The guidance on working from home where you can is based solely on COVID concerns and this will be reviewed in light of the findings of the roadmap reviews (yet to be published).

Once this is relaxed, it will be up to employers as to whether their employees are required to return to the workplace, and when, although it’s highly likely that government guidance will recommend talking to employees about this is advance of the return date.  This communication strategy will be important to show that business owners are behaving reasonably and that they’re taking the appropriate action from a COVID-secure angle in terms of sharing the latest COVID-secure risk assessment, carrying out individual risk assessments where needed and ensuring all employees are aware of the COVID secure measures they will have to adopt when they return.

Want to learn more about flexible working considerations?

If you’re interested in learning more about your responsibilities when it comes to managing homeworking and flexible working, you can catch our webinar – hosted by Citation’s Head of Employment Law, Gill McAteer – which covers all the key considerations employers need to make.

Plus, our latest episode of The Citation Podcast takes a look at the future of homeworking – preparing a homeworking policy to managing flexible working requests. You can listen to the episode here, or on Spotify, Apple Podcasts and Google Podcasts.

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