Joanne Holborn, partner and head of employment at commercial law firm Baines Wilson, answers two of the most asked legal questions from businesses now furlough is coming to an end

Can I change the terms and conditions of employees when they return from furlough?

As the Job Retention Scheme winds down, we are seeing businesses that want to bring staff back on shorter hours or lower rates of pay.

Employers can alter the terms and conditions of employment to make such changes but only in three specific circumstances.

The employee must agree to the changes or the changes must be permitted under their contract of employment or, as a last resort, the employer can terminate employment and re-engage staff on new terms and conditions.

The second option – relying on the wording of the contract of employment –rarely applies. The contract would have to be specific about the types of changes allowed. You can’t rely on a catch-all clause that says the employer has the right to change terms and conditions. That wouldn’t be sufficient justification for making significant changes.

If you opt to terminate and re-hire, affecting 20 or more staff, you must enter a consultation period with either a recognised trade union or elected representatives of 30 days or 45 days if 100 or more staff are affected. As part of this process, the employer is required to provide certain proscribed information to the appropriate representatives and to complete an HR1 form.

There is not, however, a requirement to pay redundancy to staff who reject the new conditions and leave, because this is not a redundancy situation.

If you are considering this route, it makes sense to start the process now given that the Job Retention Scheme ends on

Persuading the employee to accept changes is the most straightforward option. Communication is key here.

Very often changes are necessary to ensure the survival of the business. If employees understand that, they are more likely to agree to changes.

There is a fourth option, to unilaterally impose changes, but that brings the risk that an employee takes you to an employment tribunal.

What does an employer need to do if they receive a request for flexible working?

An employee who has worked for their employer for 26 weeks has a right to request flexible working.

This covers any number of things. It could be going part-time, changes to start and finish times or working from home some or all the time.

This legislation was introduced to help people with childcare but employees can request flexible working for any reason. Employers are required to consider such a request reasonably and respond within three months.

You can refuse it on any one of eight grounds: that it would add costs; the work cannot be reorganised among other staff; people cannot be recruited to do the work; it would have a negative impact on quality; or on performance; that the business would not be able to meet customer demand; there is a lack of work to do during the proposed working times; the business is planning changes to the workforce.

There are circumstances where refusal could give rise to an indirect sex-discrimination claim. Employment tribunals recognise that women have more childcare commitments so refusing flexible working might be deemed discriminatory.

The employer can still refuse a request but, in this instance, has to be able to justify the grounds for refusal.

If, for example, the employer refused a request to work four days a week because it couldn’t recruit anyone to work the fifth day, it may have to show that it had attempted and failed to recruit to the role.

The legislation on flexible working may be about to change. The Conservatives have a manifesto commitment to make flexible working the default rather than putting the onus on the employee to request it.

Meanwhile, Labour MP Tulip Siddiq has introduced a private members’ bill that would give employees the right to request flexible working from day one of their employment.