Can employees insist upon working from home on the basis that it is now custom and practice?

Posted in : Seamus Says - Employment Law Discussion on 3 June 2021
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered: Remote Working, Covid-19, Working from Home, Custom and Practice, Flexible Working

So, Seamus, is it long enough to be custom and practice? Is the situation so singular that you couldn't really justify a custom and practice at the moment, or how long would me working from home give me the right to work from home? How many weeks does it have to be?

Seamus: Yeah, I think, from my view, I think we're all very clear that our current circumstances have arisen as a result of the pandemic and we can pretty much put our finger as to when that started for most of us. I think though that it is circumstantial. There will be some employees who have maybe been on an ad hoc basis doing a couple of days from home already pre-pandemic, and that may certainly have formed part of their custom and practice if it wasn't written down and agreed. Certainly, the manner that I would advise any employees at the minute would be that if they were looking to formalise variations or amendments to how they work, that they should put those in writing to the employer and make that request. And for employers, I think my view would be I would lie on the side of the fence that I don't tend to . . . as a result of the pandemic that it has created a custom and practice for employees, but I'm conscious as time goes on, and depending on what government advise is that that may change.

But I do think, I mean, we talked in the last podcast about hybrid working and about how that really is looking like it's going to be inevitable for a lot of businesses, and a real . . . I think it's the degree of flexibility from both the employer and the employee on the basis that it may be that you will have discussions with your HR advisor or with your line manager about how working life is going to proceed going forward.

I keep hearing about businesses saying that they're going to require employees to start returning to the office in June, and it's July, it's 20%, it's 25%. We're all just a bit unsure at the minute and we hear about variance and how things are going to proceed, so we are working cautiously, and I would hope that employers maybe have been clear with employees that these are maybe temporary measures that maybe that is being provided in writing to them, or that there is a degree of flexibility. As always, Scott, it always comes down to good communication and presentation with your staff and employees.

Scott: Okay, our final word maybe from Mairead, just on that. Are you finding that employees who are looking for work, are looking for that flexibility, and employers who are looking for employees are having to offer the flexibility or they're going to struggle?

Mairead: Yeah, it's definitely a conversation to know we have every day with employers now, because obviously everyone is following sort of government guidelines and typically working from home, but we are consistently getting asked by candidates to know what is the policy when things return back to normal. Can I have a hybrid approach? Can I work from home? And I think probably the pandemic has fast tracked sort of the digital transformation for lots of organisations and one positive that's come out of it is that it's made us all sort of reimagine what our work should look like and reimagine where we can do our work and how we can do our work.

And that has brought really good, great positive so to know we've got . . . you can have really talented individuals that we're tapping into from across the UK in Europe who potentially only have to be in the office one day a week here and that makes it really practical in terms of opening that skill pool up. But I definitely think employers will need to look at, to know what is their policy once things are turned back to normal, to know do we have to have people working in the office, or if we are looking at our employer brands and the benefits and how we make ourselves a really attractive employer. Can we be more flexible in our approach? I think, with the majority of roles, the answer is yes. I think employers will need to look at that. They'll need to look at what makes people tick now? What do they want in terms of getting that really good work-life balance and what they're looking for from an employer, so I think that's something we'll have to look at going forward.


This article is correct at 03/06/2021

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Seamus McGranaghan
O'Reilly Stewart Solicitors

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