What Next? Part 4In deciding whether to allow an employee’s request to continue a full or partial remote working schedule, what account should be taken of the reasons for that request?

In our ‘What next’ webinar last week, I indicated that in most cases the safest answer to this question is “none”, and that the employee’s reasons for the request are broadly irrelevant to the question of whether the WFH arrangement proposed will work for the business and therefore of whether it should be granted.

One participant suggested that this proposition was “somewhat bold” and I do agree that it sounds superficially a little uncaring, but there is good reason behind that position.

First, the law. The bones of the flexible working regime now appear in section 80F Employment Rights Act 1996. That lists the required contents of a flexible working request, which do not include any reference to the reasons why the employee wants it. If he is not obliged to disclose his reason, the employer cannot be obliged to factor it into his considerations. Similarly, the rules around when a flexible working request can be refused in section 80G do not suggest that the employer’s ability to decline a flexible working request lawfully depends in any way on any factors other than the eight permitted reasons set out there. Consideration of why the employee wants that remote working schedule do not therefore form any part of the statutory legal framework.

Second, the risk. Once you allow the employee’s personal position into the equation, you will necessarily find yourself making value judgments in relation to that reason, both between the employee and the company and the employee and other colleagues who might have asked for similar or even conflicting arrangements (i.e. where you can grant one but not both). Those value judgments may well include at a conscious or unconscious level, your own subjective views of the merits of that reason. Maybe you are swayed by the employee’s use of emotive language in describing his actually quite ordinary circumstances, or you assume from the fact that he doesn’t sound desperate that no harm will come of refusing it. Perhaps you think that surely some alternative arrangement could be made through family or friends, or that when you were that age, no-one would have dared seek WFH for such a reason. You may be sceptical about the compatibility in practice of the employee’s claimed reason for working at home with their ability to maintain the hours and focus they promise, or perhaps you disagree that they actually need as much WFH as they say for the purpose claimed.

Each of these considerations is fertile grounds for an allegation that your decision was tainted by bias, favouritism or outright discrimination. Why is his wish to be at home with the kids more important than mine to avoid public transport during the pandemic? Why is it OK for her to rely on a difficult commute as a reason for WFH when it was her choice to live there in the first place? Why is protecting his mental health more important than my childcare?, and so on. All of this is contentious territory which could be much more cleanly dealt with if you can just say that the only criteria you considered were the impact of the arrangement on the job and the eight justifications at section 80G.

There are some provisos to this:

  • It is true that the Acas guidelines on flexible working requests do suggest that employers should discuss the reasons behind the request with the employee. That is not rooted in any legal requirement, so it must relate to the very proper discussion around whether there can be any modification of positions by employer and/or employee sufficient to reach agreement on some particular WFH arrangement. That does not technically require employer insight into the employee’s reasons, only the conditions which those reasons generate for him, but that distinction is possibly too subtle for Acas to risk including in practical guidance.
  • There are good arguments that the employer does need to understand the employee’s reasons where the remote working is sought as a reasonable adjustment for a disability. It is part and parcel of the employer’s obligations to make such adjustments that they may well have marginally adverse impacts on costs or performance, etc. Therefore, even though it might be entitled to reject a request under the Section 80G rules, an employer could still be caught by the Equality Act in relation to those adjustments if it turns a Nelsonian blind eye to them.
  • This is not a suggestion that you positively shut down any attempt by the employee to explain their reasons, only that you do not solicit them and that you do make it clear at an early stage that the only question to be considered is whether the arrangement sought or negotiated will work for the business. It is only the disability discrimination regime which requires the making of reasonable adjustments. The impression to the contrary which may be created in other cases by asking why (and so making something relevant which legally is not) will rarely be helpful.

Last, a related question arising from the webinar queried how the no-knowledge approach to flexible working requests could be squared with the need to avoid indirect discrimination. The starting point argument in response must be that if the proposed arrangement would pull one or more of the triggers in Section 80G, that would be the required justification for declining it. That would probably not be automatically effective by itself every time, since the reason under Section 80G does not on its face need any particular degree of materiality, while justification clearly does. For that reason, discussion of the employee’s desired arrangement and your/his room for manoeuvre on it is an integral part of the flexible working regime. But ultimately we come back to the same place – If you cannot reasonably make the employee’s intended WFH schedule work without unacceptable disruption to the business in one or more of those eight ways, the reason why he wants it cannot constitute a good, let alone legally mandated, basis on which to agree to it.