Tina Chander, a partner and head of the employment team at Midlands law firm Wright Hassall, discusses the challenge of flexible working requests.

 

Despite the Government recently announcing it has postponed the lifting of Covid-related restrictions until July 2021, many businesses have already reopened for trade, with measures in place to ensure the safety of their employees.

However, one difficulty already causing headaches for employers is the desire of many employees to continue a more flexible approach to their work, having become accustomed over the last year or so to no commute, lower costs, and a better work/life balance.

It is already becoming clear that many employers are due to receive employee requests for flexible working; particularly from those who continued working from home throughout the pandemic and will have experienced the potential benefits of this on a day-to-day basis.

Requests from employees who were placed on Furlough or Flexible Furlough under the Coronavirus Job Retention Scheme may have also developed an eagerness to remain at home upon their return to work. Especially if this fits around routines, such as child care arrangements, more easily.

Whilst it unlikely to be feasible for employers to agree to every flexible working request, businesses must consider each request on its own merits; taking the time to understand the individual employee’s situation and perspective on matters.

The first consideration for an employer is whether the employee is eligible to make a formal flexible working request

Where the request is made by an employee who has at least 26 weeks of continuous employment at the date of making the request – and has not made a formal flexible working request during the last 12 months – the employee will be entitled to make a formal flexible working request and it must be handled accordingly. This will typically involve meeting with the employee, allowing them to explain the reasons for their request in more detail. Therefore enabling the employer to properly consider the request.

What to expect and important considerations

Firstly, it is important to note that any request for flexible working must be made in writing. Email is just as acceptable as a written letter. Whilst many employees may look to discuss the matter more informally with their Line Manager in the first instance, which is, of course, understandable and perfectly acceptable, they should be reminded of the need to place their request in writing too, so that it may properly be considered as a formal flexible working request.

The flexible working request should, for clarity, state that it is a flexible working request; that the employee meets the eligibility criteria; explain the reasons for the request; and provide any other information concerning the desired working pattern that the employee believes would be relevant and helpful in aiding the employer making their decision. The more information given, the easier the process will be in determining the practicality of the request.

As noted above, an employee can only make one formal flexible working request in any 12-month period. Employers should check their records to ensure no such request has been made within this timeframe.

Flexible working requests can be wide-ranging. However, they will usually cite one or more of the following as the reason for the request:

• Change their work location. E.g., work from home for some or all of their contracted hours
• A reduction or variation of the days the employee works. E.g., compress their contracted weekly working hours into fewer days; or
• A reduction or variation of working hours. E.g., potentially reducing a current full-time role to a part-time one. Or, flexible start and finish times.

Having received a request, the employer must deliver an answer within three months. This allows time for the individual to submit an appeal if the decision goes against them. This time can be extended by mutual agreement when considerations are more complicated. There may be occasions where the request can be approved easily and without the need for further discussion. However, this is highly dependent on the request. The usual course of practice is to arrange a meeting with the employee to discuss their request further.

Employees should be encouraged to submit requests in good time before they would like to see the changes to their working arrangement. If their request is feasible, it can then be implemented from the desired time.

After meeting with the employee, it is important to weigh up all the advantages and disadvantages of accepting the request based on the information provided. Proper consideration must be taken before any decision is reached. The meeting should therefore be conducted without employers indicating the outcome at the meeting. It will usually take time to consider what impact long-term flexible working may have on the entire workforce.

 

 

Most flexible working requests come from individuals seeking a better work-life balance

Pre-pandemic, employees granted flexible working requests were reportedly happier and more productive. This is, of course, a good outcome for employers. However, the sheer number of anticipated flexible working requests upon working arrangements returning to normal after Covid-19 could now cause a problem for employers.

The dilemma for many businesses will be balancing the potential benefits of the requests against the negative; particularly if the employee is in a leadership role and their input is needed to oversee operations and manage more junior level roles. Or, if an employee’s role generally requires considerable collaboration with colleagues.

It is also important to remember that where employees are not eligible to make formal flexible working requests, they may make an informal request. This should be considered in accordance with the needs of the business and operational requirements.

Employers should notify employees of the outcome of their flexible working request within a reasonable timeframe. If the request is accepted (including if it is accepted in part with slightly alternative arrangements proposed), the employee should be informed in writing with confirmation of the details and any trial period. This will be a formal permanent change to their terms and conditions of employment (unless agreed otherwise) and should be treated as such.

Reasons to refuse a request

There will inevitably be circumstances where employers cannot accommodate a flexible working request; an outcome that may become more necessary if numerous requests are being received. However, employers can only refuse a flexible working request for one or more of the reasons detailed in the legislation:

• Additional costs associated with change will impact the business;
• The changes will make it more difficult to meet expected customer demand;
• The inability to redistribute work among colleagues;
• The inability to hire new staff to fill gaps left;
• Changes will negatively impact service quality;
• Any change will reduce performance of the business;
• Lower demand at the times the employee wants to work; and
• The business is already planning changes to the workforce.

Again, this decision should be communicated in writing, with an explanation as to the reason(s) for refusal of the request. Plus, the option for the employee to appeal the decision.

When assessing requests for flexible working, employers must also be mindful of whether any of the employees are protected under the Equality Act 2010 before deciding whether to accept or refuse their requests. Refusing a request from employees afforded such protection could result in claims of discrimination. This can be very costly for employers.

When refusing a request, the employer must explain the reasons carefully to help the employee understand how the changes would impact the business. This is time well spent. It should minimise the risk of claims against employers as a result of their refusal.

Working through lockdown might be a problem

In the post-lockdown working world, many employees will be keen for their employers to adopt a long-term culture of flexible working, which they will inevitably argue has now been proved to be effective with minimal impact on business productivity in many situations due to remote working being viably sustained for so long. Employers may find it difficult to demonstrate that granting requests for flexible working will negatively impact the future performance of their business if it operated effectively throughout the enforced lockdown.

However, whilst trying to accommodate genuine requests, dividing a workforce in more ways than one can be a problem. Those returning to the workplace may end up with all the printing, posting and filing tasks, to say nothing of the commute costs. This could result in reduced morale and feelings of unfair treatment with some employees.

It is also important to consider the impact of having some workers at home and some in the workplace. This can cause a disconnect between colleagues and impact productivity; instant messaging and Teams will never replace a face-to-face in the office. In all circumstances, employers must ensure they apply a fair approach across all employees when it comes to considering flexible working requests.

As the workforce leaves lockdown with a very different approach to work/life balance, employers must prepare for the inevitable requests for flexible working; seeking to compromise where possible with employees as to their desired working patterns, provided these are feasible. Retaining key talent will be critical to the long-term performance of the business.