Flexible working is a right now… or is it?

Rhian Radia, Partner and Head of the Employment team at Bishop and Sewell.

By Rhian Radia, Head of the Employment Law team at solicitors Bishop & Sewell

I am interested in flexible working rights – are all employees entitled to this, regardless of maternity/paternity status?

Flexible working was never only the preserve of employees with children. That perception in itself caused issues in the workplace when working parents were seen to have preferential status. All employees can request flexible working. It is important to remember though that this is just a right to request flexible working at present rather than a right to work flexibly.

That is unlikely to change any time soon in my view even though there is an ongoing government consultation around reshaping the flexible working laws.

There is much being made of the likelihood of flexible working becoming a day one right if the law changes so that 26 weeks of service will no longer be required to request flexible working. Will that really make a difference though? After the pandemic, many employees are negotiating hard before accepting job offers about their place of work and working hours. Many are not taking roles if they do not meet their expectations around flexibility.

Can my employees refuse to return to the office?

This will depend on their employment contracts. If the contract states that the office is their place of work then it will be a breach of contract to refuse to attend the office if no formal change was made to that contract during the pandemic. I am seeing situations also where employers are requiring employees to work remotely who do not want to do this. Some employers have made significant cost savings from giving up office space during the pandemic and are looking for more remote working moving forward. The question sometimes is around whether employees can be forced to work from home. It could be a case of looking further than just at the employment contract as there are some duties which are implied into the employment relationship. I can see an employee arguing that they have a positive right to attend and be given work but at the same time, an employer could argue that there is an implied duty to work in a co-operative way and to adapt to new working methods. Interesting times ahead.

The government has done away with isolation rules but what if, as an employer, I don’t want an employee with COVID in the workplace?  What rights do I have as an employer – and what of the employee?

Moving forward it is all about how we live (and work) with Covid. The government has once again highlighted the “personal responsibility” element. This is a tricky area. An employee will not have to tell their employer that they have Covid. They may no longer test for Covid since tests are no longer freely available. But if they do let an employer know that they have Covid, what is an employer to do? The best advice is to put a policy in place about this. I can see issues around employees who are in the office being uncomfortable about working alongside another employee with Covid symptoms. Although now that the list of symptoms has expanded, this could be any employee who is unwell….This policy could require employees not to attend work if they test positive for Covid. But what about sick pay? SSP is no longer payable from day one if employees are off work because of Covid. I think employers should provide for sick pay if they are requiring employees to stay off sick due to Covid.

Where is the line crossed between incentivising someone to be vaccinated against Covid and pressuring them to be vaccinated?

The recent publicity around certain employers taking the controversial step of treating vaccinated and unvaccinated staff differently in terms of sick pay wasn’t good publicity in my view. This went far beyond incentivisation. Is it really worth the employee unrest this causes and what does it say about any company’s values and culture when it starts treating groups of employees differently. Doesn’t the risk outweigh the benefits? It is never a straightforward thing for employers to start to stray into areas of personal choice for individuals but I have seen employers providing vaccine information/time off for vaccinations and sending a more subtle message.

For initial advice or to arrange a meeting with one of our Employment team, please quote reference CB306 and email [email protected] or contact: 020 7631 4141 and ask to speak to our Employment team.

About Bishop & Sewell LLP
Bishop & Sewell is a long-established, full service Central London law firm – with an international reach – specialising in Personal, Property and Commercial legal matters. To learn more, visit www.bishopandsewell.co.uk

(This article previously appeared in The World of Work blog.)