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Can A Company Reject Someone’s Request To Remain 100% Working From Home?

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Can a company reject someone’s request to remain 100% working from home?

At least until 6 April 2024 (more on this below), an employee with at least 6 months’ service has the right to make a flexible working request or a change to the terms of their employment, whether that be in relation to location or working hours. Employers can refuse this request provided that they can rely on one of the eight statutory reasons, these are:

  1. the burden of additional costs
  2. inability to reorganise work among existing staff
  3. inability to recruit additional staff
  4. detrimental impact on quality
  5. detrimental impact on performance
  6. detrimental effect on ability to meet customer demand
  7. insufficient work for the periods the employee proposes to work, or
  8. planned structural changes

What claims could employers be open too?

An employee can challenge their employer’s decision on a flexible working request in the following circumstances:

  • if the decision was reached on incorrect facts,
  • if their employer failed to communicate the result of the request within the required timeframe, or
  • if the employer did not rely on one of the eight statutory reasons listed above.

An employee may also consider bringing a claim related to the refusal of their flexible working request, including: discrimination claims (for example, working from home could be a reasonable adjustment in terms of disability), or unfair constructive dismissal (if the employee thinks the employer has acted unreasonably in reaching its decision).

The changes in April 2024

From 6 April 2024, there will be some minor changes to the right to make a flexible working request. Primarily, it will become a day-one right. By this, we mean that employees no longer need 26 weeks’ service to make a formal request.

Other changes include:

  • Employers will need to consult with employees before rejecting their request.
  • Employees can make two requests within a 12-month period (they used to be limited to just one).
  • Employers will need to respond to a request within two months rather than three.
  • Employees need not explain in their request what effect the change will have on the employer or how it should be dealt with.

What happens if it goes to the Employment Tribunal?

If an employee brings a flexible working request claim,  the employment tribunal’s powers are limited to a point. A tribunal cannot question the commercial reasons behind an employer’s decision to turn down the request. Nor can the tribunal comment on whether  it thinks the request should have been accepted. This heavily restricts the legal scrutiny an employer’s decision can come under and makes it difficult for employees to succeed in these types of claims.

Therefore, a Tribunal’s power is limited to:

  • Reviewing the procedure followed by the employer,
  • Considering whether the request was taken seriously,
  • Considering whether the decision was based on correct facts, and
  • Considering whether the reason given falls within the eight statutory reasons.

Provided the employer ticks all of these boxes, there should be minimal risk of a successful finding against it. However, the employer will still need to be careful to ensure that its decision is reasonable and takes account of any of the employee’s relevant protected characteristics.

For advice on this or other matters, contact our employment law solicitors today.

Tom Charteress

Posted:

Tom Charteress

Trainee Solicitor

Tom is a Trainee Solicitor in the Employment team based in the Northampton office and deals with employment issues in a pragmatic and logical approach.