BNY Mellon: Can they unilaterally withdraw existing flexible working arrangements?

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It has been widely reported that the behemoth US bank, BNY Mellon, has revoked the flexible working arrangements which have enabled staff to work from home for a proportion of the working week. The bank has justified their contrarian approach to the issue by stating that the move was designed to increase efficiency by improving staff “interaction”. Unsurprisingly, the move has been met with an outcry from employees who had got used the to the current arrangements, or, in some cases, had joined the bank precisely because of the availability of these arrangements which allowed them to juggle the various demands on their time, such as child care.

So what is the legal position?

In the UK, all employees have the legal right to request flexible working arrangements, although they must have worked for the same employer for at least 26 weeks to be eligible.  Flexible working can include reducing hours of work, taking time off during school holidays, job sharing, changing shift patterns and/ or working from home.

Employers must deal with requests in a ‘reasonable manner’ and give them reasonable consideration, and cannot lawfully reject such applications without considering them fully and rationally. Examples of handling requests in a reasonable manner include:

  • assessing the advantages and disadvantages of the application, the latter of which can include the burden of additional costs, the impact on quality of work and customer demand, and the inability to reorganise work amongst the team.
  • holding a meeting as soon as possible to discuss the request with the employee.
  • Giving the employee the opportunity to explain the changes they are seeking and when they want them to take effect. In addition, giving them an opportunity to explain what effect the changes would have on the employer and its business and how these could be dealt with.
  • offering an appeal process (the whole process needs to be concluded within three months of the original flexible working request)

If an employer does not handle a request in a reasonable manner, the employee can make a claim against them in the  Employment Tribunal, although it is highly recommended that any dispute is managed via an internal grievance procedure.

In the event of a claim being made to the Employment Tribunal there is the potential exposure of being ordered to pay compensation of up to eight weeks pay (currently capped at £508 per week) and possible associated discrimination claims if, for example, the decision affects more women or disabled employees.

An employer can refuse an application for flexible working, as we have alluded to, if they have a good business reason for doing so, and it seems that this is the provision upon which the bank is relying to withdraw the opportunity for flexible working. By applying a blanket ban on the practice, the bank has clearly not considered each application on a case-by-case, rational manner, and it is here that it is likely to be vulnerable and exposed to legal challenges, even if the defence of “a good business reason” is valid.

It has been reported that staff have had the flexible working arrangements added to their employment contracts when they became policy in 2017. If that is the position, then any unilateral withdrawal of that right will be a breach of contract, and the bank is susceptible to such claims by its employees.

Although it has been reported that the decision to withdraw the flexible arrangements has already been taken, the bank has informed some news providers that no final decision had yet been made. In our view, the bank would be wise to resile from the threat to withdraw the arrangement, as by its blanket ban, it is clearly in breach of Parliament’s intention to encourage such working practices, rather than eradicate them.

 

Meaby & Co are lawyers experienced in the financial services field in respect of employment issues. Should you require advice on any aspect of employment law, including the above, please contact Chris Marshall or Steven Eckett on 0207 703 5034.