COVID-19 has acted as the catalyst for many workers to start homeworking. Others are having to request new working patterns to accommodate caring responsibilities in light of school closures. Although these working practices will only be temporary for some, it's anticipated that once staff are encouraged to return to the workplace, employers are likely to see a surge in flexible working requests.
Who can make a statutory flexible working request and what does it look like?
Flexible working is any working pattern or arrangement that deviates from what was agreed with the employee when their employment started, including remote working and different working hours.
In terms of the statutory regime, all employees with 26 weeks' continuous service have the right to make a flexible working request. The right does not apply to self-employed contractors, consultants or agency workers. An employee can make one request in any 12-month period. A request should be in writing, setting out how the changes will affect the business.
What are our obligations if we receive a flexible working request?
Whilst there is no obligation to agree to a flexible working request, you must consider it reasonably. There is a three-month decision period to consider the request (this can be extended by agreement), discuss it with the employee and notify the employee of the outcome.
Discuss the request with the employee
On receiving a request, assess the impact of the proposed new work pattern and arrange to discuss it with the employee as soon as possible (usually in a meeting although this is not a statutory requirement). Given current circumstances, many of these meetings will have to take place virtually. It is also good practice to give employees the right to be accompanied.
The discussion is a good opportunity to ensure both parties fully understand why the change has been requested, what is being requested and the impact of the change. Allow the employee to set out how they see the new pattern operating in practice. Make the most of this opportunity to ensure that there is a proper exchange between both parties, particularly if you have identified operational challenges - these should be discussed in full.
Also be alert to any discrimination risks. Does the employee have a protected characteristic which needs to be taken into account when considering the request?
Make a decision
Once the meeting has taken place, decide whether to accept or reject the request, or allow a trial period to see if it works. When a request is agreed it results in a permanent change to the employee's terms and conditions unless specifically agreed otherwise.
If you think that the role cannot be performed flexibly, a statutory flexible working request can only be refused on one of the following statutory grounds:
- 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;
- or planned structural changes.
The decision should be in writing – and any refusal should be detailed and well-articulated as to the specific reasons why the request cannot be accommodated. The employee should also be given a right of appeal against a refusal.
The impact of COVID-19 on flexible working requests
If an employee has successfully worked from home / flexibly during lockdown, this may make it more difficult to refuse a request to work flexibly permanently, especially where the employee has demonstrated that productivity hasn't dipped. Increased use in technology such as Zoom and Microsoft Teams has shown that, certainly in some industries, it is possible to connect effectively with colleagues and clients while working remotely. This issue is something we will explore in our webinar – see details below.
Informal flexible working requests
It is possible to offer a more informal approach to flexible working and not require employees to follow the statutory process outlined above (e.g. by not requiring 26 weeks service; committing to respond within a shorter time frame etc). This is something you could consider, particularly in the current circumstances when employees may want to work flexibly in the short-term because of caring responsibilities or public transport concerns.
Flexible working policies
Think about reviewing your flexible working policy in light of the shift in working practices brought about by COVID-19. For example, how will you deal with multiple and competing flexible working requests?
Flexible working going forward
The government has previously indicated that it intends to introduce a requirement to make flexible working the default unless an employer has a good reason not to. Therefore, it is clear that, not only because of the pandemic, there is going to be an increased focus on flexible working going forward.
If you have any queries about flexible working, please get in touch with a member of the employment and immigration team.
Workbox by Brodies
Detailed practical guidance on managing flexible working requests, including template letters as well as homeworking and flexible working policies can be found on our award-winning online HR and employment law site, Workbox by Brodies.
Workbox by Brodies provides users with quick access to 350+ HR guidance pages and 200+ templates written by Brodies' leading employment lawyers, so you can manage your people with confidence.
Here's what one of our Workbox clients has to say about the site:
Workbox by Brodies is great – it gives us access to up-to-date and easy to understand HR guidance. The template documents available on the site are really, really useful.TClarke Contracting Limited
Contributor
Practice Development Lawyer
