Workplace attendance has been steadily decreasing, and there is little sign that this will change. Centre for Cities, an independent think tank, has published a report which shows that London’s weekly office attendance average has fallen from 3.9 days pre-pandemic to 2.7 days post-pandemic. With hybrid-working models now common-place, and in most cases the expectation, many employers are struggling to enforce stricter workplace attendance.
One of the results of the pandemic was that it equipped workforces to work remotely and provided evidence to suggest that staff can remain productive outside of an office environment. Consequently, it has become much harder for employers to justify refusing flexible working requests which are based on office attendance.
Legal Entitlement
The majority of employment contracts outline an employee’s place of work, usually stating an address, and commonly requires the employee to work there unless told otherwise. This means that typically an employee, in their employment contract, will have agreed to attend their place of work every working day and are therefore contractually obliged to do so.
Since the pandemic, it has been common for employers to exercise their discretion and allow employees to adhere to a hybrid pattern of work, often supported by a hybrid-working policy. However, very rarely does this equate to a permanent variation of their employment contract. Flexible working requests have to be taken seriously and given fair consideration, but there is no legal obligation which requires requests to be automatically accepted.
Considering Flexible-Working Requests
It is important that flexible working requests are dealt with fairly and that an employer has sufficient reason to deny any flexible working requests. An employer should carefully assess any potential benefits or detriments that could come from accepting or rejecting the request, as well as any effects that a requested change would have for both the organisation and the employee. If an employer decides to reject a request, it must consult the employee before the decision is made. Typically, this occurs in the form of a consultation meeting, which should be held without unreasonable delay. The statutory time limit for dealing with a request is two months.
Employers must agree to a flexible working request unless there is a genuine and reasonable reason not to. Accepted reasons for denying a request are set out in the Employment Rights Act 1996:
- A detrimental impact on quality
- A detrimental impact on performance
- The burden of additional costs
- An inability to recruit additional staff
- An inability to reorganise work among existing staff
- A detrimental effect on ability to meet customer demand
- Insufficient work available for the periods the employee proposes to work
- Planned structural changes to the employer’s business
Acceptable reasons for denying requests are not limited to the reasons set out in this list. If there is evidence that office attendance improves productivity, client service, efficiency, or training for junior staff, then this may provide a proper basis for requiring compliant office attendance. Similarly, if an employer perceives office attendance as benefitting the collaborative culture of a workplace, this may also provide a lawful basis for enforcing increased office attendance.
When considering a request, it is imperative that employers don’t unlawfully discriminate against an employee on the basis of any of the protected characteristics set out in the Equality Act 2010. Therefore, when considering a flexible working request, it is important for employers to consider whether this would fall under their legal obligation to make a reasonable adjustment.
The Employment Rights Bill, which is currently being debated, is proposing to introduce flexible-working as a day-one employment right. The current list of reasons to deny a flexible-working request is likely to remain relevant, and an employer must demonstrate that they have acted reasonably in deciding to deny a request.
Advice to Employers
Employers should ensure they implement a clear and coherent attendance policy, which is well-communicated to employees. This is likely to increase compliance and assist an employer in providing a legally compliant reason for refusing a statutory flexible working request.
Employees who choose not to comply with an attendance policy can be dealt with using the employer’s disciplinary process. As always, it is important to follow a legally compliant process, which is conducted in a fair manner and reaches a proportionate outcome. Disciplinary consequences of non-compliance should be communicated, and disciplinary action should be consistent with other/previous action.
