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What happens if you are barred from working from home

Major City bank BNY Mellon came under fire from employees recently after announcing that it was ending its work from home scheme

Many employees vented that this was a huge step backwards in employment working practices with issues such as mental health and childcare being amongst the key concerns.

The backlash actually led to the bank retracting its plan but the announcement left people across the country unsure of their rights when it comes to working from home. Lindsey Hunt, Legal Adviser from DAS Law, has given some answers about employees and their right to work from home…

Can a company legally ban employees from working from home?

The Employment Rights Act (ERA) 1996 sets out a statutory right for employees to make an application to their employer to change their terms and conditions relating to their hours worked, when that work is done, and/or where that work is done. This is known as a ‘Flexible Working’ (FW) request. Each individual FW request needs to be considered on its own merits following a fair and reasonable process in line with the ACAS Code of Practice.

Can an employee challenge the decision to end flexible working practices?

If a company exercised a blanket ban of all flexible working practices they would in breach of the ERA 1996 which gives eligible employees the right to make a request to their employer for flexible working. An employee could raise a grievance in the first instance to attempt a resolution.

If an employee subsequently submitted a FW request they would have the option to complain to a tribunal if the employer:

  • Fails to deal with their FW request in a reasonable manner;
  • Fails to notify them of the decision with the three month decision period;
  • Fails to rely on one of the statutory grounds when rejecting their request;
  • Bases its decision on incorrect facts; or
  • Treats the FW request as withdrawn when the grounds entitling the employer to do so do not apply.

An employee could have further statutory protection in the form of potential discrimination and constructive unfair dismissal claims if their FW requests were made due to childcare commitments, religious requirements or adjustments due to a disability.

Are employers legally obliged to offer flexible working practices?

Employers are obliged to consider a FW request for any reason from an employee with at least 26 weeks’ continuous employment under the statutory scheme. Only one request may be made under the statutory scheme in any 12-month period. Requests cannot be made by agency workers unless they are returning to work from a period of parental leave.

An employer can refuse a FW request on eligibility grounds or for one or more prescribed statutory reasons. The employer may have legitimate business reasons why it cannot accommodate a request but they must fall under the eight specific grounds:

  • The burden of additional costs
  • Detrimental effect on ability to meet customer demand
  • Inability to organise work amongst existing staff
  • Inability to recruit additional staff
  • Detrimental impact on quality
  • Detrimental impact on performance
  • Insufficiency of work during the periods the employee proposes to work
  • Planned structural changes.

What can I do if I currently undertake flexible working and the practice is then stopped by my employer?

If an employee makes a successful FW request, this would usually constitute a permanent change to the employee’s contract of employment. If an employer varies this without the employee’s agreement, the employee could argue that the contract of employment has been breached.

An employee in this position would be advised to raise a grievance in the first instance to try and reach a resolution with the employer. In the absence of any resolution, the employee may have a constructive unfair dismissal claim or potential discrimination claim if their flexible working arrangements were due to childcare commitments, religious requirements, or adjustments due to a disability.

If my employment contract states I can work from home can my employer change this without my consent?

An employer should not unilaterally vary an employee’s contract. As a matter of good law and good employment practice the employer should enter into a consultation procedure with the employee, setting out the genuine business reason for the change.

Can I take a legal action against my employer if they reject my request to work from home?
An employee can complain to a tribunal if the employer:

  • Fails to deal with their FW request in a reasonable manner;
  • Fails to notify them of the decision with the three month decision period;
  • Fails to rely on one of the statutory grounds when rejecting their request;
  • Bases its decision on incorrect facts; or
  • Treats the FW request as withdrawn when the grounds entitling the employer to do so do not apply.

A claim must be presented to a tribunal within three months of the relevant date, which is the first date on which the employee became entitled to bring a claim unless the tribunal agrees to extend this period.

An employee could have further statutory protection in the form of potential discrimination and constructive unfair dismissal claims if their FW requests were made due to childcare commitments, religious requirements or adjustments due to a disability.

Disclaimer: This information is for general guidance regarding rights and responsibilities and is not formal legal advice as no lawyer-client relationship has been created.

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