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As we approach what we hope is the final Christmas cursed by COVID-chaos and enforced homeworking, Associate, James Hockley takes a light-hearted look back over the last two years and remembers some of the Zoom stories that grabbed our attention for all the wrong reasons. These stories variously caused shock, laughter and nationwide acts of communal face-palming, yet they all shared the same lesson – by careful what you do, say or show on camera, as it may come back to haunt you!

Jackie Weaver: You have no authority

The start of 2021 witnessed the sudden rise to stardom of Jackie Weaver. “You have no authority, Jackie Weaver” became emblazoned on t-shirts, pumped out across the radio waves, and the talking point in many Zoom coffees. Leaving aside any employment or data protection issues when disseminating recordings of private meetings generally, I, for one, am glad this verbal dual made its way into our living rooms. What better way to get us through the cold, dark winter months than to witness a modern-day Gladiatorial battle set in none other than the Handforth Parish Council. (Did images of Geraldine Grainger, Alice Tinker, Hugo Horton and Jim Trotter spring to anybody else’s mind as they watched the drama unfold?).  Lesson? If you have (rightful) control over the Zoom eject button then don’t be afraid to use it – especially if a colleague has the temerity to question your authority.

The oversharing Spanish showerer

Not to be outdone by a British council in the year that Brexit happened, Torrelavega municipal council in Spain showed that Spanish councils, too, can get down and dirty… or, rather, up and clean. In a bid to kill two birds with one stone, councillor Bernardo Bustillo dropped his pantalones and jumped in the shower whilst listening in to a council meeting that was being livestreamed. The problem for Bernardo was that he had failed to turn off his video and, in so doing, became the real butt of the joke. Whilst his colleagues looked on in horror and tried to alert him via calls and messages to his phone, this wave of panic was drowned out by splashes of water behind a partially frosted pane of glass. After finishing cleaning behind his ears, real horror struck as Bernardo climbed out in full view. All jokes aside, poor Bernardo was left offering to tender his resignation following Shower-gate. Lesson? Always check and double check that the video is turned off and the microphone muted when showering by stealth.

The Texan kitty

Then, there was the wide-eyed, perplexed looking kitten, otherwise known as Rod Ponton, who stole our hearts from across the pond in a way no other Texan State Prosecutor has done before or since. Judge Roy Ferguson of Texas’s 394^th judicial district managed to control his laughter when Ponton attempted to make his submissions through his feline-faced friend. “I believe you have a filter turned on in the video settings. You might want to…” said the judge, at which point the desperate looking kitten interjected: “Can you hear me, judge?”. In case any doubt remained, Ponton went on to exclaim most seriously: “I’m here live. I’m not a cat”. Lesson? Do be careful when using filters and be sure to get the judge’s acknowledgement that, despite appearances, you are, indeed, not a cat!

Mrs Potato Head

Lizet Ocampo provided a further tale of filter-failure in the early stages of the pandemic as she appeared as a potato head for the duration of her Zoom meeting with colleagues. In much the same way as the Texan Kitty, the potato head was surprisingly good at capturing Lizet’s emotions much to her colleagues’ amusement. She had downloaded some funny filters for virtual happy hours she attended the weekend before.  What was appropriate for a Saturday afternoon social was not necessarily right for a Monday morning meeting with work colleagues, however. Fortunately, everyone saw the funny side and one of Lizet’s team went on to share the image on Twitter. Not surprisingly, the tweet went viral leaving Lizet to tackle the root of the issue head on by tweeting: “I yam potato boss”.  Lesson? If using your Zoom account for work and leisure purposes, always make sure you know how to change your settings back so that you do not come unstuck; nobody wants to talk to a (sack of) spud(s) on a Monday morning!

Thoughts for the year ahead…

We hope this glance back at a few of the funny yet embarrassing Zoom stories from the last two years provides you with an element of light-hearted relief as we go off on our Christmas breaks. Whilst these stories are real life examples of what, with distance, can be seen as moments of comic gold, they do remind us of the need to be careful not to do, say or show anything that we would not do, say or show if we were physically present in a meeting room.

For all the great benefits that technology has afforded us during the pandemic years, we hope that in 2022 we can meet many more of you again in person rather than via a computer screen. We will leave it to your judgement as to whether you wish to come dressed as a cat or a potato!

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The Government has published a consultation seeking views on proposals to expand and improve the flexible working framework.  In this briefing, we look at the proposals for reform, as well as the changes that the Government has declined to take forward.  The consultation closes on 1 December 2021.

What is the consultation about?

The Government’s 2019 manifesto committed to consult on making flexible working arrangements the default save where employers had good reasons not to permit them.  On 23 September 2021, the Government published a consultation entitled “Making Flexible Working the Default”, setting out its proposals for change. 

The consultation opens with the statement that “A world class approach to flexible working is a key part of the Government’s ambition to build back better”.  It highlights how the COVID-19 pandemic has shown us that things can be done differently in the workplace when we have to.  The Consultation says we have had our eyes opened to what is possible, and we must seize the moment to make flexible working in all its forms part of “business DNA”.

These grand statements suggest that radical and substantial proposals for legislative reform will follow.  However, the reality is somewhat more modest, with the emphasis placed on cultural rather than legislative change.  Because the proposed changes are so modest, below, we first outline what is not changing and then what the proposals for reform actually entail. 

What will not be changing?

Employees will not have the right to be granted a flexible working arrangement

Despite the 2019 manifesto commitment – and the name of the Consultation – the proposals do not propose to give employees a right to have a flexible working arrangement.  The Government considered whether this would be the right way to make flexible working the default but concluded that there were too many moving parts for this to be achievable in a practical or sensible way.   The Consultation points to the wide range of different roles and ways of working within them, the multiple forms of flexible working, the broad range of individual needs and the wide range of business models as barriers to a “one size fits all” right to flexible working.

Instead, the Government wants to encourage better discussions about flexible working between employees and employers.  The Consultation proposals are aimed at “rebalancing” the current flexible working framework to support discussions about what may be possible.

Employers will not be required to publish their flexible working policies 

The Government’s July 2019 consultation, Good Work Plan – Proposals to Support Families, contained proposals for large employers (i.e. those with 250+ employees) to publish their flexible working policies.  The Consultation explains that the responses received to the earlier consultation demonstrate that it is important for employers to be able to adapt their flexible working policies to specific workplace scenarios at different times.  Furthermore, there were concerns about what information should be published, meaning that “policy” would have had to be defined in legislation.  It is said that this would create a rigid approach, contrary to the wider policy aim of wishing to encourage conversations between employees and employers.

With these points in mind, and the fact that businesses are still taking stock of which working practices will be effective after the pandemic, the Government has decided not to require employers to publish their flexible working policies.

Employers will not be required to state in job advertisements whether flexible working is available

In addition, employers will not be required to specify in job advertisements whether flexible working is available (and in what form) for a particular job role.  However, the Government believes that its proposal to make the right to request flexible working a “Day 1” employment right will help to deliver cultural change which, in turn, could lead to employers providing this information in job advertisements on a voluntary basis.  

What are the proposals for reform?

The Consultation seeks views on the following five proposals for reform:

Proposal 1 – Should the right to request flexible working become a “Day 1” employment right?

Currently, employees must have 26 weeks’ continuous service with their employer before they can make a flexible working request.  The 26-week threshold was introduced to reduce the burden on employers of administering such requests. However, a previous review of the flexible working legislation did not find evidence that dealing with requests placed an unreasonable costs burden on employers.

The Government believes that the qualification period works against the aim of making flexible working the default and reinforces the perception that it is something an employee must earn or receive as a “perk”.  The proposal is to remove the 26-week threshold and make the right a “Day 1” employment right.  This would expand flexible working rights to a further 2.2 million employees.  The Government also believes that this reform would help to nudge certain behaviours from employers, namely, considering flexible working early in the job design and recruitment processes.

Proposal 2 – Are all of the eight business reasons for refusing a flexible working request still valid?

Currently, an employer may refuse a flexible working request for one of eight business reasons set out in the flexible working legislation.  These are:

• Extra costs that will be a burden on the business.
• The work cannot be reorganised among other staff.
• People cannot be recruited to do the work.
• Flexible working will negatively affect quality.
• Flexible working will negatively affect performance.
• The ability to meet customer demand will be negatively affected.
• There is a lack of work to do during the proposed working times.
• The business is planning structural changes.

The Government is content that the current list does not present a disproportionate barrier to flexible working and it does not see a case for fundamentally changing them.  However, it is recognised that things have changed since flexible working was first introduced and so views are sought on whether these eight reasons remain reasonable.

Proposal 3 – Should employers have to show that they have considered alternatives when rejecting a flexible working request?

Currently, employers who wish to refuse a flexible working request must provide the reason or reasons for refusal (see above).  There is no obligation for them to consider alternative solutions.

The Government wishes to ensure that the law supports informed discussions between employees and employers, including whether, and how, different types of flexible working arrangements could be accommodated.  Therefore, the Consultation seeks views on how practical it is to ask employers to consider alternatives and explain this when rejecting a flexible working request.  It is hoped that building in such a requirement will influence organisational norms among businesses that have not fully considered the opportunities for flexible working.

Proposal 4 – Should employees be able to make more than one request per year and should the time period for employers to respond to requests be changed?

Currently, employees are able to make one flexible working request per year.  Once a request is made, an employer has three months to consider whether the request can be accommodated and provide a response.

The Consultation seeks views on allowing employees to make more than one request per year.  The Government’s view is that it would allow the framework to be more responsive to changes in an individual’s personal circumstances.  The Consultation asks whether there should be a cap on the number of requests that may be made per year – suggesting two, three, more than three or none.

In terms of the employer’s timeframe for response, the Government considers the current three month period to be the right one but seeks views on whether change is needed.  The Consultation suggests alternative periods – the lowest of which is under two weeks.

Proposal 5 – How can employees be encouraged to make requests for temporary changes where needed?

The current flexible working framework already provides for temporary arrangements to be agreed.  However, the Government believes this is underutilised and seeks views on what would encourage employees to make requests to support temporary life changes (e.g. settling a child into school or an elderly parent into a care home).

Is there anything else to know?

Aside from the proposals for legislative reform, the Consultation outlines further work to be undertaken to help make flexible working the default:

Inviting the Flexible Working Taskforce to consider how to move on from Covid 19 and make the most of the lessons learned

The “Flexible Working Taskforce” is a partnership across business groups, trade unions, charities and Government departments.  The Government has asked the Taskforce to take forward what has been learned about working practices throughout the pandemic and develop advice to support new ways of working.  Initially, the Taskforce will focus on the location aspect of flexible working, in particular hybrid working.  Thereafter, it will move on to provide wider advice on best practice around all aspects of flexible working.  The Consultation does not specify when the Taskforce’s advice will be published.

Call for Evidence to be launched on how to secure a flexible working friendly culture across and within organisations

The Government’s view is that flexible working extends beyond requesting contractual changes to terms and conditions: it is also about getting the organisational culture right.  With that in mind, the Government plans to launch a separate Call for Evidence looking at the sorts of extra flexibility people need and how “ad hoc flexibility” can be supported.  The Consultation does not specify when the Call for Evidence will be published.

What steps should employers take now?

Employers wishing to submit their views on the Consultation questions can do so online here.  The Consultation closes on 1 December 2021.

It is not yet clear when the Government will publish a response, but it is unlikely to be before Spring 2022, meaning that the timeframe for legislative change is likely to be the latter half of 2022 (at the earliest).  Accordingly, there are no immediate steps for employers to take.  However, given the shift towards hybrid working caused by the pandemic, now is a good time to take stock of the general approach to flexible working and how it might change in future as many employers will already be doing.

In particular, if the right to request is made a Day 1 right, then it would be sensible to assume that the question will be raised in job interviews.  Therefore, some preliminary thought should be given to whether flexible working arrangements are workable.  Thought should also be given to whether to ask the question of job candidates proactively (on the basis that it is better to understand whether a request is likely to be made in future than to be taken by surprise).  Of course, care must be taken to ask this question, and respond to the answer given, in a non-discriminatory way. 

Consideration should also be given to the management of internal flexible working processes.  If the right is expanded, and employees are also given the right to make multiple requests per year, then employers will have more requests to deal with (and potentially less time to respond to them).  Employers should ensure that processes are streamlined and that sufficient resources are allocated to dealing with incoming requests efficiently. 

Making Flexible Working the Default

If you would like to discuss the issues raised in this article please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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An employer’s refusal to allow an employee to make modest adjustments to her working hours following her return from maternity leave has been held to be indirect sex discrimination.  An Employment Tribunal awarded the employee £185,000.

What happened in this case?

Ms Thompson was employed as a Sales Manager by Manors, an estate agency.  Manors covered both sales and lettings, with many international clients.  Ms Thompson was recognised for her good client relationships and it was acknowledged by the company that “down to you, the business is doing well.”

Ms Thompson took a period of maternity leave between October 2018 and October 2019. On her return from maternity leave, she made a flexible working request asking to work four days per week from 9am to 5pm (rather than the standard 6pm).  She wanted to finish work at 5pm in order to pick up her daughter from nursery.  The flexible working request also set out a number of suggestions to make the proposal work including that her maternity leave cover (who was about to revert back to her original position) could fill in for her on her day off and that she would be available on her mobile telephone for any urgent queries between 5pm and 6pm.

Manors refused the request, citing the following business reasons:

• the burden of additional costs;
• the detrimental effect on the ability to meet customer demand;
• an inability to reorganise work among existing staff;
• an inability to recruit additional staff; and
• planned structural changes.

Ms Thompson appealed the decision on the basis that the grounds for refusal had not been explained. She referred to ACAS guidance on flexible working, highlighting that there had been no discussion of the request with her, rather it was a flat refusal.  Further, she argued that the request would not result in the burden of additional costs, cause any detriment to meet client demand or require additional staff.

Ms Thompson resigned before the appeal was finalised.  She went on to bring various claims, including a claim arguing that the working hours requirements was indirectly discriminatory on the grounds of sex.

What was decided?

The Employment Tribunal considered whether it was still the case that women are more likely to be the primary carers of children than men, noting that the situation is not as obvious now as it was a generation ago. Ms Thompson adduced evidence to confirm that this is still the case, which was accepted by the Employment Tribunal.  It is worth noting here that this decision was handed down before a recent Employment Appeal Tribunal decision, where it was accepted that the “childcare disparity” is a matter that Tribunals must take into account if relevant, without the need for further evidence.  In other words, although this employee was able to produce evidence to show that women were more likely to have primary child caring responsibilities, there was, in fact, no need for her to have gone to the trouble. The Employment Tribunal also agreed that the working hours requirement placed Ms Thompson at an individual disadvantage.

The Employment Tribunal then turned to consider whether the working hours requirement could be justified.  The Employment Tribunal understood the employer’s concerns about meeting customer demand, coupled with caution about changing the team’s roles during a time when Brexit had caused a period of uncertainty to the property market.  However, it did not follow that the employer was unable to have made the adjustments sought.  Although it would have caused them some difficulty, this did not outweigh the discriminatory impact that the working hours requirement had on Ms Thompson. As such, the requirement was not justified, and the indirect sex discrimination claim succeeded.  Ms Thompson was awarded compensation of £185,000.

What does this mean for employers?

It is critical for employers to consider the rationale and justification for refusing a flexible working request with care.  It is not enough to rely on the list of potential reasons for refusal set out in the law relating to requests for flexible working – a clear explanation is needed.  It is, therefore, important for employers not simply to rely on a template refusal letter; time needs to be taken to tailor the response to the issues that the business is concerned about and explain why the proposal is not viable in that particular individual case.

The Employment Tribunal also mentioned that no consideration was given to the use of a trial period to see whether the feared impacts would transpire. Trial periods are a useful tool which are often overlooked when considering how to respond to a flexible working request.  The pandemic has shown the viability of hybrid and/or flexible working for many roles and, as such, trial periods may be less relevant in some cases.  However, where the request concerns a novel working pattern, consideration should be given to the use of a trial period.

If you would like to discuss any issues arising out of this decision please contact, Emily Plosker (emilyplosker@bdbf.co.uk), Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

Thompson v Scancrown Ltd t/a Manors

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A private member’s bill that seeks to reform the law on flexible working was introduced into Parliament in June. Put forward by Tulip Siddiq, shadow education minister, the Bill has cross-party support and seeks to give employees the right to flexible working from the first day of their employment, unless exceptional circumstances exist.

Amanda Steadman discusses the potential implications of the Bill with HR Magazine: https://www.hrmagazine.co.uk/content/features/what-s-holding-back-a-flexible-working-bill-for-employees

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As the country emerges from months of lockdown restrictions, a new survey commissioned by Acas reports that around half of British employers expect to see a rise in staff working from home for some or all of the time.   Another survey by EY suggests this expectation is well-founded.  The Work Reimagined Employee Survey found that 80% of workers surveyed wanted flexibility in their job, with 40% wanting flexibility about where they worked for at least part of the week.  In the light of this, Acas’ new guidance on hybrid working is well-timed and covers a wide range of issues for employers to consider.  The guidance is split into five sections, each of which is discussed below.

Considering hybrid working for your organisation

The guidance notes that employers may be considering introducing permanent hybrid working of their own volition, or in response to an employee’s flexible working request.  It points out the many positives of hybrid working including helping to:

• increase job satisfaction;
• attract and retain a more diverse workforce; and
• improve trust and working relationships.

However, the guidance stresses the need for employers to give careful thought to where, when and how work could be done before making any decisions. 

In terms of the “where”, consideration should be given to the use of technology, how teams will stay in touch, health and safety concerns and why certain tasks have to be carried out in the workplace.  In terms of the “when” thought should be given to how important it is for work to be done at a specific time.  And in terms of the “how” a checklist of different issues to think about is provided, including things like how new employees will be onboarded and how the workplace will be configured. 

Employers are also urged to discuss their employees’ needs before making any changes.  This includes things like their home working environment, whether any reasonable adjustments are required and whether they have caring responsibilities.  Essentially, employers need to avoid a “one size fits all” approach – different arrangements might be needed for different job roles and different employees. 

It is suggested that hybrid working arrangements are trialled for a short period to judge how they work.  Where such arrangements are not possible (for some or all), employers are urged to discuss alternative flexible working options with employees and keep the position under review.

Consulting and preparing to introduce hybrid working

Before bringing in hybrid working arrangements, the guidance points out that employers may be obliged to consult with staff.  This may be necessary to secure an employee’s agreement to vary certain terms of their employment contract (such as place of work or hours of work clauses).  Additionally, the employment contract, or non-contractual policy, may state that the employer will consult with staff about organisational changes.

Employers may also have statutory obligations to consult with employee representatives where:

• the proposals affect health and safety;
• require changes to 20 or more employment contracts;
• where the employer is party to a collective agreement with a trade union; and/or
• the employer is party to an information and consultation agreement.

The consultation process involves explaining what the proposals are and inviting employees to provide feedback and raise any concerns.  There are different ways of doing this, including face-to-face meetings and staff surveys.  Employers should listen to any concerns and try to resolve them before introducing the changes.

Creating a hybrid working policy

There is no obligation to introduce a specific hybrid working policy and employers may feel that they can address hybrid working within an existing flexible working policy.  However, the guidance indicates that it is a good idea to have a stand-alone policy since it can address in detail how hybrid working will operate and specify any limitations.

In terms of outlining how things will work, the policy could, for example, explain:

• how someone may request hybrid working and how that request will be dealt with;
• what equipment will be provided and how it will be set up (and, interestingly, the EY survey revealed almost 43% of workers wanted their employer to upgrade at-home hardware);
• how health and safety risks will be assessed and addressed;
• what, if any, insurance is needed; and
• how staff will be trained and performance managed.

The policy could also set out any limitations such as any roles or tasks that cannot be performed at home and any restrictions on where homeworking can take place (e.g. not in a public place or overseas if this may trigger tax and immigration issues).

Treating staff fairly in hybrid working

Wherever staff are working they should be given access to the same work, support and opportunities for training, development and promotion.  Line managers should communicate regularly with all of their reports, regardless of where they are located, and work should be allocated fairly and not according to location.

The guidance highlights the risks of directly or indirectly discriminating against people with certain protected characteristics.  For example, it could be directly discriminatory not to allow a mother to work at home because of a concern that she will be distracted by her children, whilst allowing a father to work from home.  Refusing hybrid working for certain roles could amount to indirect discrimination, for example, against disabled people who find it difficult to attend the workplace every day or against women who bear the primary childcare burden and have a greater need for flexibility. 

In addition, employers must ensure that they proactively make reasonable adjustments for disabled staff where required, regardless of where they are working.  For example, if an employee has a physical disability which is exacerbated by sitting down all day, it may be necessary for the employer to pay for a sit/stand desk to be installed at the employee’s home. 

Supporting and managing staff in hybrid working

The guidance underlines that employers have responsibility for staff wherever they are working.  This encompasses things like:

• health, safety and wellbeing;
• supporting mental health;
• managing performance; and
• providing training for hybrid working practices and more generally.

As far as performance management is concerned, it suggests that employers discuss with staff whether there is a need to monitor performance and how this could be done in a consistent manner when working in the workplace and/or remotely.

Comment

It seems inevitable that we will see a permanent shift towards hybrid working given the experience of homeworking over the last 16 months.  As with anything in life, homeworking has its pros and cons, but most employers and employees would now acknowledge the benefits of some degree of homeworking.  Yet the shift to hybrid working on a permanent basis is not without its challenges.  Employers must ensure that not only do they meet their legal obligations, but that they make hybrid working a positive experience for staff.  This guidance, together with our recent FAQs on hybrid working, gives employers a good grounding in the issues they need to grapple with in order to achieve this.

Acas Guide to Hybrid Working

BDBF is currently advising many employers and employees on the challenges presented by the coronavirus pandemic, including preparing for the return to the workplace.  If you or your business needs advice on any coronavirus-related matter please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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In Keating v WH Smith Retail Holdings Ltd an Employment Tribunal ruled that a female employee was indirectly discriminated against on the grounds of sex when her employer sought to impose Saturday working on her.  It also said that she had been constructively unfairly dismissed.

What does the law say?

Indirect discrimination occurs where:

• The employer applies a provision, criterion or practice (the PCP) to a worker who has a protected characteristic for the purposes of the Equality Act 2010 and applies the same PCP to workers who do not share that protected characteristic.
• The PCP puts (or would put) people with whom the worker shares the protected characteristic at a particular disadvantage compared to those who do not share it (the group disadvantage).
• The PCP puts (or would put) the worker to that particular disadvantage (the individual disadvantage).
• The employer cannot show the PCP to be a proportionate means of achieving a legitimate aim (objective justification).

Many employment cases have recognised that women are more likely than men to bear the bulk of childcare responsibilities and that this may disadvantage them as a group.

What happened in this case?

Ms Keating was employed as a retail assistant by WH Smith. She was contracted to work flexibly for 20 hours per week (with a further eight hours per week when more staff were required). Her contract also stated that she may be required to work Saturdays, Sundays and/or public and Bank Holidays. She was a single parent with one dependent child aged eight and her childcare responsibilities meant, in practice, she only worked on weekdays.

In the early summer of 2018, her manager, Mr Cruickshanks, identified a business need to introduce a Saturday rota for the weekday staff. This was due to falling sales revenue in the store and budget constraints that followed from this. There was an anticipated departure of University students who worked weekends and Mr Cruickshank wanted to fill those shifts with the weekday staff. The proposal was for the weekday staff to work one in every four Saturdays.

Numerous meetings followed between Ms Keating and Mr Cruickshanks, where she highlighted her concerns about childcare. Ms Keating heard no more about the proposed Saturday working until September 2018 when she was rostered to work Saturdays.  She reiterated her concerns and Mr Cruickshanks told her she would need to arrange shift swaps with her colleagues.

Ms Keating worked the first rostered Saturday but had to bring her daughter to work with her due to lack of childcare.  Once again, she explained to Mr Cruickshanks that she had no one to look after her daughter on Saturdays.  No satisfactory response was given.  Ms Keating resigned on 22 October 2018 and claimed indirect discrimination on the grounds of sex and constructive unfair dismissal.

What was decided?

The Employment Tribunal upheld both claims.

Indirect sex discrimination

The Tribunal concluded that the PCP of requiring weekday staff to work one in four Saturdays put women at a particular group disadvantage when compared with men because, statistically, women are still the primary carers of dependent children and more women than men are single child carers.

The Tribunal used its collective experience and judicial discretion to assess the impact of the PCP to women at large as WH Smith did not clearly identify the pool of staff in the store (i.e. how many were men and how many were women, how many had childcare responsibilities of dependent children and how many had partners). The Tribunal concluded that Ms Keating was put at a disadvantage: she was a woman, a single mother who could not afford childcare and had no network she could call on.

The Tribunal also accepted WH Smith had the legitimate aim of needing to manage costs and the desire to share Saturday working fairly amongst the team.  However, the aim was not proportionate. Mr Cruickshanks had not considered less discriminatory alternatives.  For example, he had not asked any other employee whether they could work the Saturday shifts for Ms Keating and/or considered recruiting one dedicated member of staff to work Saturday shifts.

Constructive unfair dismissal

The Tribunal concluded that WH Smith failed to have any regard to Ms Keating’s childcare issues, despite there being several opportunities to address it.  This conduct was likely to destroy or seriously damage the relationship of trust and confidence.  In particular, the Tribunal noted that the express flexibility provisions in Ms Keating’s contract were fettered by the implied term of trust and confidence.  Ms Keating had resigned in response to WH Smith’s reliance on this clause and she had done so promptly.

What does this decision mean for employers?

This case, and the recent decision in  Dobson v North Cumbria Integrated Care NHS Foundation Trust, show that Tribunals are willing to accept as a fact that women bear the primary responsibility for childcare and this may limit their ability to work certain hours or working patterns.  Any rigid requirement to work weekends, nights or unpredictable hours may well mean that group disadvantage will follow. 

Employers should avoid imposing rigid and onerous working patterns on women with childcare responsibilities, especially single mothers without a support network as was the case here.  Try to be as flexible as possible and open a dialogue with the employee to identify a pattern that works for both parties.  Ignoring an employee’s repeated concerns is a dangerous strategy.  Even if no compromise is possible, the efforts made here will help employers demonstrate that they have acted proportionately and also not breached the duty of trust and confidence.

Keating v WH Smith Retail Holdings Ltd

If you would like to discuss any issues arising out of this decision please contact Hannah Lynn (hannahlynn@bdbf.co.uk), Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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As we get closer to an end to lockdown restrictions many employers are now beginning to consider what a return to working life will look like.  In this briefing, we examine some of the most frequently asked questions about the return to work and hybrid working.

For the vast majority of employers in the services sector, the pandemic has drastically shifted what a normal working environment looks like and resulted in a huge shift to home working.

Some employers, such as Morgan Stanley and Goldman Sachs have made public statements supporting a return to a 100% working from the office model, while others are now keen to reduce their overheads completely and pursue a 100% remote working model.

Many employers prefer to adopt a middle ground and pursue a hybrid working strategy.  However, a shift to a hybrid working arrangement throws up many potential issues for employers that need to be considered in advance.

Do we need to change employment contracts if we adopt a hybrid working model?

Before the pandemic, most employment contracts stipulated that employees’ normal place of work was the office.  This was, of course, something that the pandemic made impossible for significant periods of time for many.

Employers considering a move to a hybrid working system may be wondering whether this will mean that they need to change employment contracts for their existing staff.  Some contracts may already permit the employer to change an employee’s normal place of work or working arrangements on reasonable notice.

If employment contracts do not allow such flexibility, a belt and braces approach would be to ask employees to document their agreement to any change in writing.  Employers who do wish to formalise these changes have the option of achieving this by consent, imposing the change or terminating employees’ contracts and re-employing them on new terms.  In most cases, consent is likely to be the simplest route forward.

Terminating the employment of employees who do not agree to changes will require consultation and may also expose the business to statutory claims such as unfair dismissal, as well as potentially triggering collective consultation obligations.  Imposing changes is not a risk-free route either and employees may work under protest after the change has been implemented or argue that they have been constructively dismissed.

Many employers, particularly those who adopt a flexible model going forward, may take the view that, if changes have been agreed in consultation with the workplace and by consent, they are comfortable with not seeking written confirmation of the change and relying on an employee’s ongoing conduct as evidence of their acceptance of the new arrangements.

Irrespective of the approach that they take with existing staff, employers who do not already have language in their contracts allowing them flexibility to change an individual’s place of work may at least want to amend their standard terms of employment for new employees.

What if we don’t know how we want to work when we return to the office?

Having worked remotely or largely remotely for many months, the patterns of hybrid working that best suit a business, or a particular team may not be clear yet.  For many employers, it will be a question of trial and error to determine the pattern of working that best fits the needs of the business, its clients and its staff.

For example, some employers may initially wish to trial having certain days where everyone attends the office.  However, such arrangements may become impracticable or even illegal in the event of a third (or even fourth) wave.  They also create a demand for larger premises for a small proportion of the week which will then be empty the rest of the time.  Other employers may start out working on one hybrid model and need to adapt it as a result of the practical difficulties encountered, such as ensuring adequate supervision for staff.

Employers should bear in mind that the model of hybrid working that they adopt now may need to be revisited in the future.  It is important that this is communicated to staff at the outset and that employers do not contractually commit to a working model that may need to be changed.

Transparency is key and employees should be clear that there will inevitably be further review as a hybrid model is trialled.  Employers who do keep their working arrangements under review should consult with staff and give them notice of any anticipated or proposed changes.

If employers are amending the terms and conditions of staff to allow for hybrid working arrangements, they will also need to ensure that their contractual terms are sufficiently broad to enable them to alter arrangements on an ongoing basis.

What if some people are unhappy about coming into the office?

Inevitably not all staff will be pleased with a move to hybrid working.  Some may prefer a full-time working from home model and others may prefer to work full-time in the office.

The latter group of employees may be easier to appease, and many hybrid working models can easily accommodate employees working in the office for more than a few days.  Employees who make flexible working requests and ask to work full time from home are considered further below.

For some employees, the fear of catching or passing on covid may be driving a reluctance to work from the office.  For example, because they, or someone that they live with, are in a vulnerable or shielded category.  If an employee’s health condition is a disability, then unreasonably refusing to change their working arrangements could be discriminatory. Employers should take the time to understand these concerns and assess what measures they can introduce to address them.

Employers should also bear in mind that those raising health and safety concerns or refusing to attend the office on health and safety grounds can have additional legal protections and these situations will require careful handling.

Can we require all staff to be vaccinated when returning to the office?

For a full discussion about whether employers should require all staff returning to the office to be vaccinated, please see our recent ‘no jab no job?’ webinar.

How do we deal with flexible working requests?

Employees with over 26 weeks’ service can make a flexible working request for any reason.  Many employers are anticipating an increase in flexible working requests over the coming months.

On the face of it, flexible working requests are relatively easy to refuse.  An employer must give one of eight prescribed statutory reasons, which include a detrimental effect on ability to meet customer demand or a detrimental impact on quality or performance.

However, employers faced with requests to allow people to work from home for all of their working time may find it more difficult than they did before the pandemic to refuse those requests.  For example, are they concerned about lower quality work because there are fewer opportunities for supervision when remote working?  Employers should also consider what evidence they have in support of that from the past 12 to 18 months.

Even if an employer’s reason for refusing a request falls within a prescribed ground under the flexible working legislation, that refusal could still give rise to a discrimination claim (on the grounds of sex, for example, where someone has requested flexible arrangements to accommodate their childcare commitments).

How should we deal with people who want to work abroad?

There have been increasing numbers of people who have begun to work 100% remotely over the last 18 months or so and many have been requesting to do so from abroad.

If an employee wishes to work abroad on a part-time or full-time basis, employers will need to consider carefully the tax, immigration and employment law implications at the outset.

By way of example only, individuals working abroad will need the appropriate visa arrangements to do so – a holiday visa or a right to be in the country will not necessarily give them the right to work in that jurisdiction.   Employing someone who works remotely abroad may also trigger tax or social security obligations in the country in which they work for both the employer and the employee.   By working abroad either some or all of the time, the employee may also benefit from local statutory employment law protections.

Employers also need to ensure that line managers are alive to the risks above and do not informally approve working arrangements of this nature (either explicitly or implicitly) without informing HR and the business of them.

This note is prepared for information purposes only and addresses some complex legal issues, it should not be used as a substitute for obtaining legal advice.

If you have any questions on the topics raised in this note, please contact your usual BDBF contact or Amanda Steadman (AmandaSteadman@bdbf.co.uk).

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In the last few weeks the press has reported that employees are to be given the legal right to work from home forever.  How realistic is this? In this briefing, we explain the proposals for reforming flexible working laws and what this might mean for employers.

It’s true to say that most workers have indicated an appetite for some degree of permanent homeworking, even when the pandemic has passed.  A survey of staff working at 500 financial services firms in the City found that 70% felt that homeworking through the pandemic was a positive experience since it allowed them to avoid the daily commute and gave them more time for leisure pursuits and family.  Another survey of working parents found that 15% wanted to continue with permanent homeworking and 55% wanted a hybrid form of working but with no more than three days in the office per week.

Recent press reports suggest that the Government agrees with them and plans to give employees the legal right to work from home forever.  But just how realistic are these reports?  The old adage “don’t believe everything you read in the papers” springs to mind.  Although proposals to shake up flexible working are afoot, it’s unlikely that this will mean wholesale homeworking.  Indeed, the Prime Minister’s official spokesperson is reported to have said this month: “It’s important to stress that there are no plans to make working from home the default or introduce a legal right to work from home”.  In this briefing we look at what has actually been proposed and when any changes are likely to come into force.

What are the proposed changes?

The Government does intend to change the law to make flexible working a “Day 1” employment right and the default position for all job roles, save where an employer had a good reason not to allow it.  We don’t know much more than this about the proposal, but it seems that the idea is to shift the burden from employees having to persuade the employer to accept flexible working for their roles, to the employer having to justify why it cannot be allowed.

It’s not yet clear how employers will be able to do this.   It’s possible that they will be able to rely on the same or similar grounds that justify a refusal of a flexible working request under the current regime, namely:

• it would cost too much;
• inability to reorganise the work among other staff;
• inability to recruit more staff;
• negative effect on quality;
• negative effect on the business’ ability to meet customer demand;
• negative effect on performance;
• not enough work for the employee to do when the employee has requested to work; and/or
• planned changes to the business, for example, plans to reorganise or change the business and the request will not fit with these plans

If so, it should be relatively easy for an employer to justify not allowing flexible working, including permanent homeworking.  That said, where an employee has been working effectively from home for a long period of time, then this may be more difficult.

We also don’t yet know what, if any, employment rights will be available to employees where an employer failed to comply with the new law.  Under the current regime, employees can bring claims for failure to comply with the flexible working request process, but compensation is limited to a maximum of eight weeks’ pay (and capped at £4,532).

In order to recover meaningful compensation, employees usually have to bring other claims such as indirect sex discrimination or constructive unfair dismissal.  Although a recent case has made things easier for women complaining that working patterns are indirectly discriminatory, it remains the case that pursuing such claims in the Employment Tribunal is not something that most employees will wish to do.

When are the proposed changes going to come into force?

The Queen’s Speech in 2019 outlined plans for a new Employment Bill which would deliver the changes outlined above.  However, the onslaught of the coronavirus pandemic meant that the Bill was not brought forward in 2020.

Two years later, the Bill has still not materialised and the 2021 Queen’s Speech delivered on 11 May 2021 also made no mention of it.   Nevertheless, the Government has said it is still committed to bringing forward the Employment Bill “when Parliamentary time allows”.  In its response to the Women and Equalities Committee report on the gendered impact of COVID 19, the Government said it remains committed to the proposals but will hold a public consultation before making any changes.

That consultation has yet to be published.  Assuming it is published in or around July 2021 and runs for three months, we are unlikely to know the Government’s final position until late 2021.  Legislation would then need to be passed in Parliament, meaning that the law will almost certainly not change this year.

Separately, on 30 June 2021, Tulip Siddiq MP will introduce a 10 Minute Rule Bill in Parliament which provides that flexible working becomes a Day 1 employment right available for all job roles and that all forms of flexible working should be listed in job advertisements.  Although this Bill will not become law, it helps keep the pressure up on the Government to follow through with its commitments.

What should employers do now?

Most employees will be asked to return to the office before this change comes into force (if it ever does).  Remember that under the existing regime, a returning employee may (if eligible) make a flexible working request, which could include a request for permanent homeworking.

Where an employee has been working from home throughout the pandemic, then this could make it more difficult to refuse such a request.  Employers will need to assess whether there are legitimate grounds for refusing such a request, for example, if the quality of the employer’s product or service has deteriorated or the employee’s performance has dipped.

However, the reality is that many employers are tackling the issue of flexibility head on and voluntarily introducing some form of hybrid working, which is likely to suit the majority of employees and quite possibly achieve savings for employers.  In short, working practices are evolving, but the gloomy predictions of empty offices and deserted cities are unlikely to come to pass and certainly not as a result of legislation in the near future.

If you would like to discuss your approach to flexible working please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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