Employment law experts examine some of the challenges and questions for employees, their employers and other parties as more organisations wrestle with post-pandemic work arrangements.

Hopefully, as life returns to more normal times (or whatever passes for “normal" in these benighted times), companies, employees and, for that matter, self-employed people will have to confront how and whether to use offices again. It is not just a simple matter of what is most efficient or effective in melding a team together, mentoring younger staff, etc. There are employment law issues to consider. What happens to people who, for various reasons, don’t want to be vaccinated? What happens if people become ill? And then there is the old “work-life” balance question to consider. Wealth managers, for example, know that a more family-friendly work environment makes it easier for them to retain staff, for example after a spell of maternity/paternity leave. On the other hand, with certain occupations flexibility will always be more difficullt: as we know today, being a lorry driver isn’t like “working from home.” Farmers, industrial welders and plumbers are rarely mentioned in such conversations. (The pandemic really has opened up the divisions between those in “white collar” and “blue collar” occupations). 

To discuss the terrain are Nick Hine, employment partner, and Ben Payne, solicitor, at Constantine Law. (Constantine Law has spoken to this news organisation in recent months on this subject.) We hope readers find these insights useful. The usual editorial disclaimers apply to views of outside contributors. Join the debate! Email tom.burroughes@wealthbriefing.com and jackie.bennion@clearviewpublishing.com

One of the increasingly tricky situations for employers in financial services businesses to manage has been the return of staff to the office, following the mandatory home working that was introduced for many in March 2020 at the outset of the pandemic.

Employers now find themselves in a situation where some employees are often reluctant to return to the office full-time and some even part-time. This could be for a multitude of reasons, including a desire to work more flexibly, a preference for homeworking or due to health and safety concerns.

Below we consider the steps employers can take to ensure that staff return to the office. However, it should be noted that under the recently announced COVID Winter Plan, the government has indicated that it may require homeworking again should COVID cases continue to rise. Employers will therefore need to weigh up whether now is the time to require people to return, given the uncertainty over the coming months.

Step 1 – the contractual position
For the majority of employees who were office based before the pandemic, it is likely that their contract will confirm that they are to be based in the office. Therefore, in the majority of cases, it is likely to be a reasonable instruction to require the employee to return to the office, as long as the correct process is followed.

Step 2 – ensuring work compliance
However, employers will need to ensure that their offices are COVID secure before requesting people to return. Employers will therefore need to familiarise themselves with and keep on top of the latest government guidance. It will also be important to undertake a risk assessment and share this with staff to be clear on what steps have been taken.

Step 3 – giving reasonable notice
It is unlikely to be a reasonable instruction to return to the office if only short notice is given to return. Whilst there is not necessarily a minimum amount of notice which must be given, it would be reasonable to infer that the longer the period of notice, the more difficult it is to challenge. The exact amount of time will be for the employer to decide. It often happens that when an employer gives such notice, employees begin to raise objections/queries and/or want to only return part-time to the office. If that is the case, it is sensible for employers to advise employees that if they do not want to return to the office full time they should make a flexible working request in writing (step 4).  Employees may also raise issues of vulnerability either in respect of their own position or in respect of someone they live with. These issues need to be considered carefully to avoid claims.

Step 4 – how to respond to employees who do not want to return
Inevitably, employers will face a situation where employees indicate that they do not wish to return or only return on a part-time basis. The reasons for this are likely to vary, and employers will not be able to take a one-size-fits-all approach. Should an employee indicate that they do not want to return, the employer should encourage them to make a flexible working request. This request could be for permanent or temporary homeworking and could be for all or part of their working week.

Eligibility
The majority of employees have the right to make a request for flexible working. The law states that to be eligible to make a flexible working request, the individual must:
-- be an employee;
-- have worked for you continuously for at least 26 weeks at the date the request is made; and
-- not have made a flexible working request during the last 12 months

However, in the circumstances, we would recommend allowing all employees to make a flexible working request. This is because whilst the legal position is that employees who meet the above criteria have the legal right to request flexible working, employees do not have the right to work flexibly per se. For this reason, our view is that it make sense to hear the requests from all employees.

Meeting
Once the employee has made the request, you should arrange a meeting to discuss the request.

At the meeting you should try to gain understanding of why the employee is making the request, and also if the request is for a permanent or temporary change.

Making a decision
Following the meeting, you should write to the employee to confirm whether you will be accepting or rejecting their request. If accepting the request, you will need to write to the employee with details of the new working arrangements (whether permanent or temporary) and the date on which they will commence.

If you want to reject the request, then it must be for one or more of the following business reasons:
-- the burden of additional costs;
-- detrimental effect on ability to meet customer demand;
-- inability to reorganise work among existing staff;
-- inability to recruit additional staff;
-- detrimental impact on quality;
-- detrimental impact on performance;
-- insufficiency of work during the periods that the employee proposes to work (relevant for varying hours); and 
-- planned changes for the business.

Whilst it is not strictly required to provide an in-depth explanation as to why the request has been rejected, we would recommend that employers consider whether an explanation would be both beneficial to the employee and would help support the decision, particularly in the event that the employee wishes to appeal. It would also potentially help should allegations of discrimination be made.

Appeal
There is no requirement for an employer to provide for an appeal from a decision under the statutory procedure. However, the ACAS Code recommends that employees be permitted to appeal.

After holding the appeal meeting, you should then confirm the outcome as soon as possible in writing. Again, we would recommend confirming the reasons for the decision made if confirming the rejection to request.

You should also then make clear to the employee that there is no further right of appeal and they are not able to make a formal flexible working request for another 12 months. However, you should be open to another request if the reasons are potentially linked to a protected characteristic, i.e. wanting to reduce hours if becoming disabled in the intervening period. You should be aware that employees can make an application to an employment tribunal should they consider their request was not dealt with properly.

Whilst many financial services employers want to get more employees back to the office, this needs to be handled carefully to avoid time consuming and expensive claims.