Can a flexible working request be reversed?

For many, the Covid-19 crisis is starting to feel like a distant memory. However, there are still changes to the way we live and work today that were influenced by the restrictions that were put in place. 

The biggest example in employment law is the shift to working from home. This was huge, with the Office for National Statistics (ONS) saying that in 2022 the number of people working from home more than doubled compared to pre-pandemic levels.

While some have embraced the commute-free lifestyle, a survey by software firm Ivanti showed that just under 40% of office workers are struggling with aspects of remote working.

In the wake of such worrying statistics, businesses may be considering what changes need to be put in place to best support their staff with their mental health, including a review of flexible working policies and arrangements.

Here Katie Ash, an employment law expert at Banner Jones, provides some insight into what employers might need to consider if they find themselves in this position.

“Firstly, it’s important to establish where the employee’s ‘place of work’ is.  If the employment contract stipulates the employee’s home address, then the employer has no right to ask the employee to work from the office and can only do so if the employee agrees or the employer takes steps to enforce the change with a variation of the contract. If the employee is struggling, they might be more than happy to agree to come back into the office on a full or part time basis, but if they are reluctant, then the employer’s immediate options are likely to be limited.

But what if the employee is asking to come back to the office?

“Well, in that case, a reasonable employer should try to work with their employees and if the employee can be accommodated in the workplace, then they should be. If the employee made a flexible working application to work from home, but now wants to change their place of work, then they could potentially be asked to complete another flexible working application, but in any event, any change to the place of work should be recorded in the contract of employment.

“If it isn’t possible to accommodate the employee’s request, could the employer think about other ways to support the employee? Maybe more in person supervision or catch-up meetings? A regular team lunch? More frequent telephone or video calls?

“Acting unreasonably regardless, of what the contract says, may harm employee relations, and could lead to grievances, resignations, and potentially Employment Tribunal claims for unfair constructive dismissal which could prove costly.”

Katie goes on to explain that dealing with reverse flexible working applications could prove challenging for businesses who have reduced their office space or got rid of it altogether, but Katie cautions that employers must follow the statutory procedure if a flexible working application is made; and should always act reasonably.

“Ultimately the outcome of a request to reverse a flexible working arrangement will depend on the specific circumstances of the employer and the employee, but it’s important to ensure that no decision prejudices the individual unfairly or unnecessarily.

“As with any contractual change the best course of action is to get legal advice to find a resolution that works for all, and our team are here to help with that.

You might also be interested in reading our Employers Guide to Flexible Working

Katie Ash, Head of Employment Law, Banner Jones Solicitors.