Flexible Working Requests / Hybrid Working Agreements

Whilst many bad things have resulted from Covid19 (understatement of the year!), many employees agree that one thing that appears to have changed for many employers is the relaxation of requiring staff to be present in the office full time.  It is very much a trend that staff are working, at least some of their week, at home.  For some this is a god send: time to get the tea on, get the washing done all within the employees contracted work hours.  Often employers accept these small intrusions into the working day, in much the same way, a quick coffee break in the office kitchen.  There is, however, a line that needs to be addressed when considering childcare obligations.  Staff can make requests to have school pick up treated as a “break” and work longer into the evenings.  But who is looking after the kids at this point?  Can employers say no?

Historically employers were always keen to avoid asking about childcare commitments as they were worried this exposed them to discrimination allegations, but understandably managers often need to understand how working at home all or part of the time will interact with domestic obligations.  Often it is essential for the employer to know that appropriate arrangements have been made. An employee cannot simultaneously work and care for a very young child (for example), so in this context the employer is entitled to ask pertinent questions. The same questions relating to domestic and family commitments must be asked of both male and female workers, to avoid allegations of discrimination.

It is legally acceptable to refuse a flexible working request – basing the decision on one of the statutory grounds: Statutory prescribed reasons for refusing a flexible working request such as impact on quality and performance (if the employee is proposing to work and care for the child at the same time) for example.  The same is true for hybrid requests – although, in these instances, there is more flexibility on describing the rational.  A requirement that an employee must not be looking after a young child while also working may well put women at a disadvantage, but if the employer has properly considered its reasons for rejecting the application, then it may well be able to show objective justification for that policy.   Always bearing in mind that a blanket policy of refusing to allow staff to work when their children are home (regardless of their age) would be less likely to be justifiable.  The age of the child may also be relevant.  A toddler versus a 10-year-old and for what period of time is likely to impact the fairness of any decision. 

Posted on 14 November, 2022 by Ortolan

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