Yahoo, Marissa Mayer and remote working: the employment law angle

Yahoo, Marissa Mayer and remote working: the employment law angle

Published:

Author: Kevin McCavish

Yahoo's Marissa Mayer caused an outcry when she banned 'remote working' at the company: organisations thinking about a similar move could fall foul of employment laws.

Background

In a leaked memo, Yahoo staff were reportedly told by their new Chief Executive that "some of the best decisions and insights come from hallway and cafeteria discussions, meeting new people, and impromptu team meetings," and "speed and quality are often sacrificed when we work from home." Many staff have reacted angrily, arguing that in a modern society remote working can reduce stress, saves travel time, lowers carbon footprint and cuts down overheads for businesses.

The Yahoo memo comes only a week after Google's Chief Financial Officer, Patrick Pichette, also hinted at a negative view of remote working. When asked how many people telecommute, Pichette replied "as few as possible", citing similar concerns as the Yahoo memo.

These views are surprising given that remote working has long been predicted as the future for both employers, who can thereby save costs, and employees seeking the holy grail of "work/life balance"!

But are these high profile views compatible with the UK Government's plans to expand flexible working provisions and existing discrimination laws?

Flexible working rights

Since April 2003, employees who are parents and carers and who meet certain other qualifying criteria have had the right to request flexible working. However, it should be noted that this is a right to request not a right to insist upon flexible working and employers can refuse requests in certain circumstances. Where flexible working is agreed arrangements have typically involved changes to an employee's hours or place of work and, together with remote or home working arrangements.

Earlier this year the Government confirmed its commitment to extending flexible working by:

  • extending the right to request flexible working to all employees with 26 weeks' continuous service, regardless of their childcare or other caring responsibilities;
  • replacing the prescriptive statutory procedure for considering requests with a new duty for employers to consider requests reasonably and within a reasonable time; and
  • introducing a new statutory code and best practice guidance.

The new flexible working regime is included in the Children and Families Bill which is currently making its way through Parliament and is expected to come into force by 2014.

What does this mean?

Despite these changes the requirement that an employer may only refuse a flexible working request on specified grounds is retained and employers must ensure that any refusal falls within these grounds or it could face an Employment Tribunal claim.

The grounds upon which a request for flexible working may be refused are as follows:

  • The burden of additional costs.
  • Detrimental effect on ability to meet customer demand.
  • Inability to re-organise work among existing staff.
  • Inability to recruit additional staff.
  • Detrimental impact on quality.
  • Detrimental impact on performance.
  • Insufficiency of work during the periods the employee proposes to work.
  • Planned structural changes.

It seems that Marissa Mayer is hoping that her newly imposed policy requiring employees to be physically present in the office leads to greater collaboration, innovation and creativity at Yahoo and so the company would be able to refuse any request for flexible working on the grounds of detrimental impact on quality and/or performance. However, each request must be considered on its own merits, these grounds will not necessarily apply to everybody's role and circumstances.

It is not just flexible working rules which need to be considered however, there is a potentially much more serious risk in respect of indirect discrimination.

In the case of indirect discrimination, be it sex (e.g. on the basis of childcare responsibilities more likely to be undertaken by women) or disability (e.g. on the basis of a physical or mental impairment making it more difficult for someone to travel to the office) any blanket policy will need to be justified and risks being regarded by a tribunal as unreasonable and disproportionate.

Comment

Even if an employee is not eligible to make a formal request to work flexibly, they could still ask their employer for home working arrangements and rely on discrimination laws to bring a claim against their employer if this was refused. Not only could a discrimination claim as a result of such a policy lead to significant negative publicity for an unwary employer it could also be expensive: compensation for discrimination is uncapped.

A blanket policy such as that now in place at Yahoo is a hostage to fortune: employers must consider all flexible working requests on their individual merits. Where such a policy does exist a company should be prepared to be flexible itself and make exceptions where there are special circumstances.

If in any doubt as to how to deal with a flexible working request employers should seek legal advice in a timely manner.