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Refusal of FWR to WFH as business wants person in the office

Hello

Received a FWR request after return from mat leave. Current arrangement is 3 days in office, 2 days WFH.

Employee wants full WFH for 1 year due to childcare. Partner is caring during her working hours, he will then work [own business] in the evenings. Employee wants to make sure they can pick up childcare the second their working day stops, so state that WFH enables this as no commute etc.

Initial discussions with Manager indicate they want to propose a compromise of 2 days in the office, and allow the employee to leave 20 mins early (no financial impact as we know employee will make this time up when we have meetings that run over etc)

Note that we were accommodating of the employee wanting to not work in the office 3 days a week during the end of her pregnancy as she was concerned about catching colds.

We have a meeting with the employee next week to discuss the request/reasons, then expect we'll have a further meeting shortly after to propose the compromise - which does address the reason for the request.

There is no denying that being back in the has positively affected our business and comms, although unfortunately we can't really point to any stats, just general feedback from people (sometimes reluctant to admit) that its been much more efficient to have real-time chats with others about work/projects in passing or at the water machine etc.

I'd suggested we trial full WFH for 3m as a compromise so we can monitor it, but manager wants to stick to 2 days in the office.

I think I'm going to struggle to get "some face to face interaction has improved communications and working relationships" into one of the business reasons for refusing the request in full? BUT considering we can resolve the reason for the request by allowing her to leave early so she can get home in time, would this be ok? (I think she will push back/appeal the compromise offered)

Thanks!

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  • Hi Samantha

    We have rejected WFH FWRs due to the expectation that colleagues in the office would take messages and pass on, scan documents etc, thus, putting added burden on them. For some roles, we also found tasks/jobs took longer due to having to call/email the person WFH and waiting for replies, again impacting colleagues.

    If a manager is ready to say no, I do always try and steer to some sort of trial - we normally agree these for up to 3 months, but say either party can end the trial with a weeks' notice.

    Hope that helps!
    K
  • Do you have an Agile Working policy separate to the FW policy? If you do you could potentially fall back on “breach of the agile working policy” or consistency and fairness
    You could also offer part day in the office on the 2/3 days so if they usually work 9-5 they could do 9-3 and WFH the remaining hr
    Is part of the reason breastfeeding/ expressing - worth exploring this and supporting if you can.
  • As you know, you need to consider the statutory reasons for rejecting a request. You do not need absolute 'proof' - but you do need to be reasonable, and ensure that you have good reasons for the preference for in-person attendance - this is one of those areas where people have a lot of feelings, opinions and beliefs, which are not always based in evidence. There is a risk of bias creeping in if we are not careful. A little challenge here to the manager is not necessarily a bad thing - so you are testing is this a real 'office is good for x' or just a personal 'I want all my team in because that is how I like to work'

    That said, if you have reason to believe (even if this is based on staff feedback and other observations) that some office time is essential, then this may well fit under some of the statutory reasons. You are also seeking to offer an alternative, rather than a straight 'no' which is helpful. Sometimes, the answer is simply that a request cannot be accommodated.
  • There is no denying that being back in the has positively affected our business and comms, although unfortunately we can't really point to any stats, just general feedback from people

    So what you're saying is that there *is* some denying it. Do you not capture customer feedback? EBITDA? Sales revenue? Repeat custom rates? Sickness absence levels? Annual holiday usage?

    If you could show that any of these had gone up faster than in previous years immediately following an enforced return to the office then you could reasonably say there was "no denying" the positive impact. If you cannot, then I put it to you that the opposite is, in fact, the case.

    Do not let the idea that *some* people prefer being back in the office and that *some other* people will say that they do in order to pander to the former counts as evidence that it is business-impact positive.

    Employee wants full WFH for 1 year due to childcare.

    Remember that the employee is under no obligation to justify their request to you. The obligation is upon you to justify why you cannot support it on one of the seven (or eight, depending on how you count them) legitimate grounds. It sounds like the one you want to lean on is that the proposed arrangement would negatively impact performance and/or quality. The manager in question will need to justify why two days pw in the office is necessary to avoid a negative impact on performance/quality *in this specific case*.

    It isn't sufficient to say "well, if we let everyone do it it will impact performance". Yes, it might. But that's not the proposal, which is for *this, specific employee* to work remotely. And if you can't articulate why this specific proposal will impact quality and/or performance then you ought to be agreeing to it.

    The 3-month trial is a much better compromise as it gives the employer the opportunity to actually measure the impact on performance and/or quality of the proposal and provides specific, clear data to support any eventual decision on a permanent arrangement.
  • In reply to Robey:

    Hi Robey

    Agree I'd rather go for the 3m trial so at least we might have something to point to e.g. if there are times she is off the radar for long periods of time etc.

    I think its the usual story of leadership not wanting the floodgates (we need to ban this word in relation to flex working) to open. Possibly doesn't help that I know there has been other sources of advice sought that seem to suggest the worst that can happen is a tribunal awards 8 weeks pay for it not being handled correctly, as an ET wouldn't delve into stats etc.

    I don't even need to look at sickness stats to know they have decreased generally with the WFH/office mix, conversely at times there have been insolated increases, usually when a team has been in together and passed viruses around, so sick stats are out. Holiday requests - there won't be anything there noteworthy. Sales revenue/profit - possibly, I had asked finance for some info, guessing that request has fallen into a black hole so will chase.

    I can genuinely say everyone being back in the office for part of the week has definitely improved business overall, you can 'feel' it, but you are right at this point there is little actual solid evidence.

    Sigh......
  • In reply to Samantha:

    you can 'feel' it


    Ah, but can you measure it? Beware of feelings. They will often tell you what you think you want to know.

    its the usual story of leadership not wanting the floodgates to open


    Then... don't open them? Letting one person work remotely by no means obligates you to let anyone else do so, as long as you can illustrate a negative impact on the business. In fact, letting this one person have a three-month trial period in which you assess the impact on their specific performance and quality will actually provide useful data for future requests. If there *is* and impact, the trial ends and you can reasonably say that you tried it and it didn't work.

    It's not a Get Out Of Jail Free card, because not everyone's situation is identical. But it is at least, y'know... data.

    There are so many advantages to letting people work remotely (easier to recruit, easier to retain, lower frequency of discipline/grievances, fewer cars in the car park, fewer cars on the commute...) that businesses really shouldn't be throwing away these significant market edges without knowing *exactly* why they aren't right for them.

  • So this is becoming a bit of a (needless) headache :(

    I won't bore everyone with the details, but in a nutshell we went back with a far better compromise than 2 days a week, and the employee is digging their heels in and wants full WFH for a year still.

    Everything I read about relevant ET cases etc. does indeed seem to suggest that, if it went that far, a tribunal wouldn't question how a business decides to run, and they wouldn't question lack of stats/hard evidence, they'd consider whether the request was handled fairly.

    I know there are moral and ideological considerations but I suspect I'm going to be asked "can we legally stick to our guns". I'm struggling a bit with understanding the relevant legislation (looking at ERA 1996 and Children and Families Act), could anyone give me some advice on this please?

    Thank you!
  • In reply to Samantha:

    Surely the only legislation you need to look at is the flexible working legislation and whether you have one of the valid business reasons for turning down the request?
  • In reply to Elizabeth:

    You'd think :D

    We have the business reason, what I don't really know is, if we refuse and this goes all the way (as I always think, like most HR peeps I assume, is "what if this ends up in an ET?") would a tribunal look for stats/evidence to back that business reason up, or would they indeed not question business rationale as long as we have handled it fairly - which seems to be the case from what I keep reading in various tribunal cases, but previous advice on here suggests we would need to provide evidence. So I'm just a bit unsure what the main risk is to us if we do refuse it - for a reason the business thinks it can justify - without any stats etc.
  • In reply to Samantha:

    My understanding is that as long as the statutory process has been followed and one or more of the statutory reasons for refusal has been validly cited then a Tribunal (if it ever got that far) would find for the employer.

    However, an employee can, quite rightly, challenge the basis upon which you have cited the statutory reasons and they have to be justified based on available evidence - otherwise an employer could just pluck out of thin air one or more of the statutory reasons and consequently refuse every and all FWRs without any consequence.
  • In reply to Robert James Munro:

    Thanks Robert, seems obvious now you say it like that!

    Bit self-indulgent but, for many reasons, I've had a very stressful year in HR and I've had to switch very quickly to advising from a moral/best practice/soft approach to more hardline what can we lawfully do, and get a lot of scrutiny and "that's ridiculous" type comments when I can't provide the answer that's wanted, so tie myself up a bit :(

    I appreciate that clarity/lifting of the fog for me in simple terms, very much.
  • Steve Bridger

    | 0 Posts

    Community Manager

    31 Jan, 2024 08:08

    Interesting tribunal case reported in PM...

    Experts explain the ramifications of a recent decision against a manager’s request to work entirely from home
    https://www.peoplemanagement.co.uk/article/1858507/does-landmark-tribunal-ruling-mean-future-flexible-working

  • In reply to Samantha:

    If I may add to Robert's point, there is a further factor to be borne in mind when refusing a FWR, which is the risk that the employee will simply resign in pursuit of a more flexible workplace.

    When I talked about the importance of measurements and stats in a company's decision to invoke the "performance and quality" justification for refusal, it was less about defending the decision in a tribunal (although it certainly helps) than it was about a business reflecting on what it is gaining if it chooses to push back in this area.

    When the gains are nebulous (a vague sense that things are "better") but the losses are concrete (when employees refused FW are resigning or bringing tribunal claims or both) there is an obvious disparity. If a business is going to take the risk of a loss of talent along with all the other benefits arising from remote work, it is only sensible to clearly articulate what is gained from that decision.
  • In reply to Robey:

    I agree Robey but sometimes I am asked to just advise from the legal perspective (although I do always speak up about the other risks as you say). I probably should have made that clearer in my OP tbh.

    I wont lie I feel a bit sick after reading that article and the judgement as the circumstances are extremely similar, very much hoping it isn't seen by my Director :(
  • Unless there is a really clear and obvious reason for denying immediately, we generally always go for the trial route which then gives the opportunity to see if it can work in practice or whether there are unforeseen consequences/issues which no one had thought of. When agreeing to a trial we make it clear the situation will be kept under review and if either party feels the arrangement isn't working, then they will return to the original working arrangement or consider if there is a different alternative. So far this approach has served us well and there have been occasions when the person making the FWR has rescinded it themselves because it hasn't worked how they envisaged!