Flexible and home working and custom and practice

[foxwelljsly]

Cheeky request for free quasi-legal advice. Maybe it will also elicit some comments on the subject.

You are an employee with a permanent contract.

Apart from the occasional meeting, you've been working at home 5 days a week for 4 years without any suggestion from your line manager that you need to go into an office.

Your employer turns round and says you now HAVE to go in 3 days a week.

Your T's and C's state that flexible working is at the discretion of your employer.

Would you stand any chance of success challenging this on the basis that your T's and C's had varied through custom and practice?

I should add this is not something I have any interest in pursuing, but it came up in a conversation recently. I'm assuming there are reasons why this isn't a thing post the big return to work, but google has not been my friend in this matter.

 

[gez]

I do recall that there, used to be at least, a concept in contract law that basically said in essence "if you perform your duties/perform/behave in a certain way for 6 months unchallenged, then your employer is considered to have accepted the behaviour". Now I don't know if it's a myth, or if it only ever applies to the start of employment etc.

It's an interesting question though. All I can say is in my own case, my last employer changed their working practice (as did many) at the end of the pandemic, from 100% office attendance required to "up to 50% home working with no authorisation from your manager required, more than 50% with manager approval". Now I do wonder if the reason they did so was because they were aware of contractural issues with asking people to go back to the office full time after having worked from home for over a year.

 

[paulfromcamden]

Interesting question and I can't add any insight I'm afraid.

My own employer went from WFH over covid, to requiring people to be in 3-4 days a week, to pretty much scrapping WFH - apart from managers obviously.

My OH is still hybrid and can pick and choose which days she goes in based on the nature of the work she's doing.

It does feel like a lot of employers still see WFH as a bit of a doss. My line manager even referred to it as my 'day off' in a slip of the tongue a couple of years back.

 

[CHE]

To the OP I had a similar experience, working at home for all but 1 day a week to then being required in the office full time for at least the next 6 months. I took legal advice and was told they company could do it and so simply resigned. There is a bit more to it which I won't recount here but a new manager was using the T&C to get me back in the office, and was legally able to do so.

CHE

 

[gez]

Interesting question and I can't add any insight I'm afraid.

My own employer went from WFH over covid, to requiring people to be in 3-4 days a week, to pretty much scrapping WFH - apart from managers obviously.

My OH is still hybrid and can pick and choose which days she goes in based on the nature of the work she's doing.

It does feel like a lot of employers still see WFH as a bit of a doss. My line manager even referred to it as my 'day off' in a slip of the tongue a couple of years back.

While I've been looking for a job over the last few months, I've noticed a very definite trend in the job advertisements (at least the ones for the roles I'm searching for), in nearly all the jobs that state "on site" (meaning no home working allowed) are connected to the construction industry. 99% of all the others are either hybrid or remote.

 

[Mike Hughes]

All about timing. Reopen your office post lockdown and lay out new working patterns with the involvement of staff and unions and you’re likely okay. Just decide some time after that things must change and you start to run into significant issues. Lots of employers are very noisy, assertive and perhaps even aggressive on the issue but most are finding at this point that custom and practice has been established and “I want to do this now …” is not the same as having a very specific and well evidenced basis for change.

 

[gavreid]

Somebody lost such a case recently. The decision was along the lines that the employer had good business reasons for wanting attendance at the place of work - even if he's concocted them, working harder, meeting collegues face to face etc etc you've heard them all before.

Anyone has the right to request flexible working and the case must be answered in a reasonable manner, i.e. if you don't like it you're free to walk. It ought to be a bit more than pointing to a blanket policy, however...

Flexible working

Requesting flexible working, how to make an application, what business reasons an employer can give to reject an application and how to appeal.

www.gov.uk

 

[stevec67]

Your employer turns round and says you now HAVE to go in 3 days a week.

Your T's and C's state that flexible working is at the discretion of your employer.

So they will now say if they have any sense that they have carried out a review post Covid and their discretion has been changed.

Would you stand any chance of success challenging this on the basis that your T's and C's had varied through custom and practice?

Not easily as such, I would have thought, if the employer supplies a justification for asking for 3 days pw

All about timing. Reopen your office post lockdown and lay out new working patterns with the involvement of staff and unions and you’re likely okay. Just decide some time after that things must change and you start to run into significant issues. Lots of employers are very noisy, assertive and perhaps even aggressive on the issue but most are finding at this point that custom and practice has been established and “I want to do this now …” is not the same as having a very specific and well evidenced basis for change.

I agree with this, however a smart employer is going to say "we have conducted a review post Covid and..."

 

[stevec67]

While I've been looking for a job over the last few months, I've noticed a very definite trend in the job advertisements (at least the ones for the roles I'm searching for), in nearly all the jobs that state "on site" (meaning no home working allowed) are connected to the construction industry. 99% of all the others are either hybrid or remote.

I'm in food manufacturing. My work is always site based.

 

[Rodrat]

I doubt you have a legal leg to stand on unfortunately, most job contracts include ‘reasonable’ adjustments or something similar.

 

[Cav]

Cheeky request for free quasi-legal advice. Maybe it will also elicit some comments on the subject.

You are an employee with a permanent contract.

Apart from the occasional meeting, you've been working at home 5 days a week for 4 years without any suggestion from your line manager that you need to go into an office.

Your employer turns round and says you now HAVE to go in 3 days a week.

Your T's and C's state that flexible working is at the discretion of your employer.

Would you stand any chance of success challenging this on the basis that your T's and C's had varied through custom and practice?

I should add this is not something I have any interest in pursuing, but it came up in a conversation recently. I'm assuming there are reasons why this isn't a thing post the big return to work, but google has not been my friend in this matter.

If your friend works in a Unionised environment, then I would expect the Union to lead on behalf of its members. If he/she does not (who needs Unions anyway) then he/she is not in a strong position.

If the employer insists on 3 days a week attendance, your friend has the following options:

Resign and claim constructive dismissal - which would almost certainly fail;

Refuse and, following disciplinary procedures be dismissed, then claim unfair dismissal - which would almost certainly fail;

Be grateful that the good times lasted so long and that the employer is not requiring all week attendance.

 

[tiggers]

Get a new job with a company that actually looks to the future… if you’ve been doing your job at home successfully ask your current employer why they now want to have you wasting time and the planet’s resources travelling to an office so you can carry on doing the same job there. It’s so utterly backwards thinking it boils my whatever!!!

 

[darrenyeats]

If your friend works in a Unionised environment, then I would expect the Union to lead on behalf of its members. If he/she does not (who needs Unions anyway) then he/she is not in a strong position.

If the employer insists on 3 days a week attendance, your friend has the following options:

Resign and claim constructive dismissal - which would almost certainly fail;

Refuse and, following disciplinary procedures be dismissed, then claim unfair dismissal - which would almost certainly fail;

Be grateful that the good times lasted so long and that the employer is not requiring all week attendance.

Obviously another option is just to resign.

 

[darrenyeats]

Get a new job with a company that actually looks to the future… if you’ve been doing your job at home successfully ask your current employer why they now want to have you wasting time and the planet’s resources travelling to an office so you can carry on doing the same job there. It’s so utterly backwards thinking it boils my whatever!!!

This.

 

[Cav]

Obviously another option is just to resign.

Of course, if jobs in his/her area of expertise are plentiful and easy to get. And if they offer work at home as an option...

 

[MJS]

I did the whole WFH full time during 20/21. We were able to and we had the means to keep in touch and do our jobs as a team. Senior management even said 'you can't put steam back in the bottle' regarding working practices, implying they were here to stay. Then we were told to come in at least 3 days a week. I could wrangle flexi season tickets to make the rail commute slightly less expensive. Then it was strongly suggested we did 4 days. There go all the rail savings, just as the train operators hiked costs. I wasn't that happy in the job after a near-redundancy forced me into a sideways move I didn't like, so I walked.
Funnily enough I now work in an office 5 days a week, but it's a pleasant drive from home, I get home before my train would have left London in the old job, and I still have flexibility, oh, and a near 25% pay rise. Sometimes you have to vote with your feet.

P.S The exit questionnaire was fun to write.

 

[Mike Hughes]

I doubt you have a legal leg to stand on unfortunately, most job contracts include ‘reasonable’ adjustments or something similar.

Reasonable adjustments are an entirely different concept and nothing to do with flexibke working unless the OP has a disability under EA 10.

 

[Mike Hughes]

Somebody lost such a case recently. The decision was along the lines that the employer had good business reasons for wanting attendance at the place of work - even if he's concocted them, working harder, meeting collegues face to face etc etc you've heard them all before.

Er, no. It’s a decision which sets no precedent and, as per my earlier post, was about timing. Employer made the decision immediateiy the office was available again and the enployee had a weak argument i.e. that they just wanted to carry on as they were as opposed to linking the request to things like child care, travel issues, health vulnerabilities.

 

[Ginger]

Whatever next? Employer wants employee at work ? Who’d have thunk it?

 

[gavreid]

Er, no. It’s a decision which sets no precedent and, as per my earlier post, was about timing.

Yes I know but you can still introduce it in the Tribunal. Unless it's appealed it's very unhelpful in terms of funding cases, legal advice on chances of success etc etc and appealing risks establishing precedent, as you say