UK: Remote Working Requests: Frequently Asked Questions

In the ongoing dialogue between organisations and their employees about the optimal balance between office and remote work, one trend looks set to emerge – an increase in formal requests for remote work arrangements.

Some of these requests will stem from employers firming up their stance on office attendance. Having enjoyed the autonomy and flexibility of remote work during the pandemic, employees are now hesitant to give it up, and some will be prepared to submit formal requests for remote work rather than change their current habits. But the trend isn't just about return to office mandates. The pandemic has reframed remote work as a viable solution to a whole range of predicaments from health concerns to caregiving or relocations. Changes to the law on flexible working from April intended to make flexible working "the norm" might also prompt more requests.

So, as the world of work is being reshaped, employers will need to be ready to respond to an increase in remote work requests. Against that background, we answer some FAQs about the legal position, explain why it's important not to lose sight of the strategic importance of flexible working when dealing with individual requests and sum up with the key considerations for employers.

Do employees have a right to remote working?

Not unless this is part of the terms of their employment contract.

During the pandemic, some employers made changes to their standard employment contracts to include remote working as the default, at least for new starters. If remote working is agreed as part of the employment contract, it can be difficult to row back from. It's not impossible to change, but it would involve a formal process to change terms.

Most employees are simply working remotely on an informal basis, as a continuance of the temporary arrangements put in place during the pandemic, without any formalised change to their underlying employment contracts. If remote working was only ever allowed on a temporary or concessional basis, then employers can generally enforce the contractual wording about office-based working, as long as an appropriate process is followed (and bearing in mind that employees might push back by putting in a request to work remotely).

In some cases, however, the terms of the employment contract are unclear or have arguably been altered by subsequent communications about working arrangements since the lifting of pandemic restrictions. Take advice if you are in this situation.

Can employees put in a request for remote working?

Employees have a statutory right to request flexible working. The law does not specifically relate to remote working, but remote working is one of the flexible working arrangements that can be applied for. The law on statutory flexible working requests is changing in April - see our flowchart for the new flexible working requirements.

If making a flexible working request under the statutory framework, employees are supposed to say that they are doing so. Employers are not completely free to ignore requests outside the statutory framework, especially if that would risk discrimination. A statutory request, however, triggers the employer's obligation to follow the statutory process and associated timescales. In practice, many employers have their own flexible working policies which build in compliance with the statutory framework.

If an employee puts in a statutory flexible working request for remote working, can we say no?

Employees can only say no to a request on the basis of one or more of eight permitted business reasons, including detrimental impact on quality or performance. Employers also need to meet the statutory requirements and follow the relevant Acas Code - see our flowchart for the new flexible working requirements for more details.

Employees can bring an employment tribunal claim under the statutory flexible working framework if:

• the request is refused for other reasons;
• a refusal is based on incorrect facts;
• the request was not dealt with in a reasonable manner; or
• the employer failed to meet the statutory deadlines and process requirements.

There's no appeal-level caselaw on remote working requests after the pandemic, but there are two interesting employment tribunal decisions:

• In MacFarlane v HMRC the tribunal was split over whether refusing an enquiry processor's request to work remotely was handled in a reasonable manner or based on correct facts, but the majority found that the organisation had failed to balance its focus on getting everyone back to the office against the employee's personal health concerns and caring responsibilities.
• In Wilson v FCA, the tribunal unanimously agreed that the employer's concerns about the negative impact of remote working on the performance of a senior manager were well founded, confirming the drawbacks of technology when it comes to rapid discussions and non verbal communication etc.

These are early signals from the tribunals, but they tend to support the view that employers can legitimately refuse statutory requests for fully remote working, but only if this comes after proper consideration and a clear rationale.

The need to cite one or more of the statutory business reasons means that more nuanced considerations about the impact of remote working arrangements on collaboration or organisational culture have to be communicated through the lens of detrimental impact on "performance" or "quality."

When the law changes in April, it will become more important for employers to explore compromises. This will be challenging if you have already given detailed consideration to minimum office attendance requirements and the employee is asking for those to be relaxed. You may have good evidence as to why a particular request cannot be accepted, but you would still need to explore alternatives on an individual basis or be at greater risk of claims.

What are the consequences of unlawfully rejecting a statutory remote working request?

Compensation for not complying with the statutory flexible working regime is limited to a maximum of eight weeks' pay.

Higher compensation is available only if the employee successfully brings another claim, such as discrimination.

Can employees ask for remote working overseas under the statutory right to request flexible working?

One feature of the post-pandemic world is that employees increasingly want - and expect – to work remotely from outside the UK, whether for a short time tagged on to a holiday or on a more permanent basis. Requests for temporary remote working can be made under the statutory flexible working regime, but in fact it's not entirely clear if this framework extends to overseas remote working.

The regime covers requests to change where "as between the employee's home and the employer's premises" the employee is required to work. There's a 2022 employment case that says "home" should be taken as meaning "home in the UK" meaning that requests to work from an overseas home would never fall within the statutory framework. This decision isn't binding, however, and would not necessarily be followed by other tribunals. In the post-pandemic world, other tribunals might take a broader "wherever I lay my hat" approach to the concept of "home" so employers wanting a zero-risk approach should assume that remote overseas working requests potentially could be made under the statutory flexible working regime.

Given that overseas working requests come with additional considerations around tax, employment rights, social security obligations and so on, employers will generally prefer to deal with them outside of the statutory process and timescales if possible. To steer employees away from making overseas remote requests citing the statutory flexible working regime, therefore, employers may want include wording in their flexible working policies pointing employees toward a different policy for overseas working.

For more detail on the additional considerations see our guide to working remotely overseas.

When is it sex discrimination to say no to remote working requests for childcare reasons?

To be found liable for indirect sex discrimination:

• a policy (technically a "provision, criterion or practice") must be applied by the employer;
• that policy must disproportionately disadvantage a protected group (e.g. women) and disadvantage the claimant;
• the policy must be unjustified.

Any policy which disadvantages people with childcare responsibilities will arguably have a disproportionate impact on women, who still shoulder most of the childcare responsibilities in the UK.

If the employee wants to work remotely while simultaneously looking after young children then it will generally be relatively easy to say no, as policies preventing this are likely to be justified even if they disproportionately disadvantage women.

Justification becomes more challenging if the employee wants remote working because the hours are then easier to juggle with childminder or school drop-off and collection times. Research shows that professional women are more likely to work full-time where hybrid and remote working are standard practice, suggesting that policies requiring office attendance do have a disproportionate disadvantageous impact on women and that women are more likely to request part-time hours if remote working is refused.

If tribunals can be persuaded that women are disadvantaged by a policy on office attendance, then:

• Employers will need to be ready to justify their policy as a proportionate means of achieving a legitimate aim. This is a higher hurdle to get over than the "correct facts" or "dealing with the request in a reasonable manner" test under the statutory flexible working regime. Ideally, employers would have evidence to support assertions about why their office attendance policy is justified.
• It's not just women who can make a claim. Men facing the same childcare obstacles can now also claim discrimination relying on a change to equality law in January 2024.

So, in summary, rejecting remote working requests which are made for childcare reasons carries a discrimination risk. On the other hand, an environment in which mothers of small children generally work remotely while everyone else is in the office also carries longer term DEI risks.

Is remote working a reasonable adjustment?

Employers have a duty to make reasonable adjustments for employees who qualify as disabled under the Equality Act 2010. We now routinely see "work from home" recommended by occupational health practitioners as a (temporary or permanent) reasonable adjustment. Although in some cases that assessment can be questioned, it is often the case that working from home will alleviate the employee's problems and, as remote working becomes more of a possibility, we can expect it to be increasingly asked for as a reasonable adjustment.

Anecdotally, significant numbers of employees are struggling to return to the office for reasons connected with physical or mental conditions, including neurodivergence, anxiety and long Covid, which may not be diagnosed. Conversations about how employees are managing the return to office may surface these health issues and lead on to questions about reasonable adjustments and/or a request for a formalised remote working arrangement.

Employers need to be careful not to trip up over process. Requests for reasonable adjustments can be made under the statutory flexible working regime, although they don't need to be. If an employee seeks a request for reasonable adjustments using the statutory right to request flexible working then you should try to comply with the flexible working process. This may become more difficult from April when the decision-making period reduces to two months. We would generally recommend pausing the process to get medical advice and agreeing an extension with the employee if needed.

More significantly, making adjustments might mean making exceptions to your normal office attendance policy. The duty to make reasonable adjustments involves going above and beyond what you would do for non-disabled employees. The key challenge for employers often lies in getting occupational health advice on whether remote working really is a reasonable adjustment. Employers frequently say that reliable, practical occupational health support is hard to come by and, while the government has recognised this and is trying to increase capacity, the situation is not likely to change quickly.

What if the employee cites caring responsibilities?

Employees with caring responsibilities for elderly or disabled adults are under the spotlight currently, with the introduction of a new right to carer's leave in April 2024. Caring responsibilities are increasingly cited by employees as a reason for wanting remote working.

There are ongoing calls to make caring a protected characteristic in its own right, but it is not currently recognised as one. If the employee is looking after someone who is elderly or disabled, they are protected against direct discrimination based on being 'associated' with someone who is protected because of age or disability. This does not, however, extend to indirect discrimination.

That said, it remains arguable that women shoulder most of the adult care (as well as child care) burden, meaning that carers may be able to challenge unjustified office attendance policies as amounting to indirect sex discrimination. For this reason, employers should be mindful of the potential discrimination risk if refusing remote working requests from carers.

Do pregnant employees have the right to remote working?

The law requires employers to assess the workplace risks posed to pregnant women and make alterations to working conditions or hours if needed. We increasingly see pregnant employees with significant (typically London-based) commutes asking for remote working. It's arguable that an employer's health and safety duties do not extend to risks associated with the commute (as opposed to the workplace itself) but nonetheless generally advisable to make adjustments where possible. Employees do not generally make these requests within the statutory flexible working regime, and they are generally best dealt with outside of it not least because very quick decisions are often needed and the adjustments are only very temporary.

Remote working as part of your workforce strategy

As our Future of Work Hub explores in its latest report on strategic priorities shaping the workforce and HR agenda in 2024 and beyond, advances in technology are converging with demographic changes and social trends. Remote working is fiercely valued by employees, with numerous surveys showing it to be more important to employees than pay, and some employees saying they'd rather resign than give it up. That's why the legal position described above is generally less significant than the impact on recruitment and retention when agreeing or refusing remote working. While some organisations are worried about the impact on culture and collaboration of too much working from home, employers in sectors where remote working isn't an option are worried about losing employees to more remote-friendly sectors.

Looking ahead, the trajectory points towards greater flexibility in the workplace in general. Remote working options can be highly valued by older workers, especially those with caring responsibilities, and are likely to be an important component of any over-50's friendly package. Remote working can also be valued by younger workers looking to build more flexibility into their working lives, although an office option frequently remains important for this cohort too. From a government policy objective, both Conservative and Labour policies have been in favour of flexible working and this is likely to continue.

Conclusions and key considerations when handling remote working requests

To sum up:

• Don't trip up over process. Employees have a right to put in statutory requests to work remotely, and this triggers a requirement to follow the correct process within the required deadlines.
• It's advisable to explore the reasons behind any request for remote working. Under the statutory flexible working regime, employees are not obliged to say why they are making their request. But to manage the request appropriately, employers will want to know. This is partly to help with exploring compromises, and partly to help ensure that you manage the request without discrimination.
• Having a clear rationale for office attendance that is shared, articulated and reviewed is important. Otherwise there is the risk of managers making inconsistent decisions or basing decisions on incorrect facts.
• Your rationale will need to stand up to scrutiny. Under the flexible working regime, that scrutiny is relatively limited. If your policy is challenged as part of a claim for indirect sex discrimination, however, it will need to meet the higher test for objective justification.
• Even if your office attendance policy is legally justifiable, the statutory flexible working regime puts a greater emphasis on compromises when it changes in April, and you will still need to assess each request on an individual basis. You also may need to make exceptions to your policy to allow disabled or pregnant employees to work remotely in some instances.
• Requests for remote working overseas bring additional considerations and are ideally best handled outside of the statutory flexible working regime where possible.
• Ultimately, employees place such a high value on remote working that employers need to consider their policies as part of their overall workforce strategy and value proposition.