In March 2019, city bank BNY Mellon came under fire for announcing it was putting a stop to working from home. Its employees vented that this was a huge step backwards, with issues such as mental health and childcare among the key concerns. The backlash led to the bank retracting its plan, but the story raised questions about what an employee’s rights are when it comes to working from home.
Firstly, if an employment contract states that an employee can work from home, an employer should not vary this without consent. As a matter of good law and good employment practice, the employer would have to enter into a consultation with the employee, setting out the genuine business reason for the change. Even where not contractually stated, a long pattern of working from home would likely be deemed protected, by virtue of custom and practice.
Then, there is flexible working. The Employment Rights Act 1996 gives employees the right to make an application to change their terms and conditions relating to their hours worked, such as when and where work is done. This is known as a flexible working request. A blanket ban on all flexible working would be in breach of the The Employment Rights Act, which explicitly gives eligible employees the right to make a request for this.
Where an employer fails to deal with a flexible working request in a satisfactory manner, an employee would have the option to complain to a tribunal. There may also be further statutory protection in the form of potential discrimination and constructive unfair dismissal claims if the flexible working request is linked to childcare, religion or disability. Of course, a flexible working request may still be declined, but employers must explain the decision and give one of a number of defined justifications, all of which amount to legitimate business reasons for their decision.
Lindsey Hunt is legal adviser at Bristol-based firm DAS Law