With workplace restrictions beginning to lift and businesses considering bringing employees back into the workplace, this has renewed discussions surrounding flexible working. Important questions have arisen such as whether employers are able to force employees to go back into the office, whether employees can insist on continuing to work from home, or whether a hybrid between the two can be agreed on.
When employees are eventually asked to return to the workplace, many businesses will expect an influx of flexible working requests. This article considers the legal position and the practicalities for employers when responding to such requests.
The default position
If an employee's contract of employment provides that they are required to work at a prescribed location, such as the employer's offices, then the employer can expect the employee to return to the workplace. If the employee refuses to return and the employer sees the refusal as unreasonable, it could result in formal disciplinary action. One way to avoid this could be through a flexible working request.
Eligibility for making a flexible working request
Employees must have worked continuously for the same employer for 26 weeks in order to have the legal right to request flexible working. The Chartered Institute of Personnel and Development (CIPD) has launched a campaign for a change in the law to make the right to request flexible working a ‘day-one right' for all employees.
Employees must make the request for flexible working in writing and must not have made any other flexible working request in the previous 12 months.
Types of flexible working
There are many different types of flexible working that can be requested, which include part-time work, flexitime, compressed hours or job-sharing, or work from home. One form of flexible working that has had to be widely-deployed since the Covid-19 pandemic is working from home or working remotely elsewhere. Many employees will have found that they enjoy working from home and are able to do so effectively, which is likely to cause a surge of flexible working requests on this basis once offices start to re-open fully.
Responding to a flexible working request
An employer is legally obliged to deal with requests in a ‘reasonable manner' within three months, which can include assessing the advantages and disadvantages of the application, holding a meeting with the employee to discuss the request and offering an appeal process. However, so long as the employer handles the request in a reasonable manner, it can refuse the application provided that it has a valid business reason to do so, which can include any of the following:
- 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; and
- Such other grounds as the Secretary of State may specify by regulations.
One of the most commonly used reasons by employers in rejecting an application is that flexible working will ‘detrimentally affect quality or performance of work'. However, employers might have to look more closely as to whether they can use this business reason to refuse future flexible working requests post-Covid, particularly for those employees that have successfully been able to work from home. If employees have proven that they have been able to work from home productively and successfully since the outbreak of the pandemic, then it is likely to be harder for an employer to argue that there will be a negative impact on quality or performance of work in the future.
Employers must consider requests for flexible working fairly and should ensure that the Acas Code of Practice is followed. Employers should also check their own code or policy, if they have one, before responding to a flexible working request.
If employees feel that their request has not been handled fairly, then they could raise a formal grievance or some might be able to make a claim to an employment tribunal.
It is unlawful for an employer to subject an employee to detriment or dismiss them for making a flexible working request. It is also vital for employers to avoid discrimination when dealing with flexible working requests.
Flexible working policies
Employers frequently have an internal flexible working policy, which helps to provide transparency for employees, by setting out how requests should be made and provides guidance on how requests will be dealt with. As we move out of lockdown, employers might need to review or update their policy on flexible working in preparation for a potential increase in requests.
If employers do develop a new policy, they should consider if there has been a shift in attitude amongst their staff as a result of the pandemic. It is foreseeable that employees might value greater flexibility becoming the norm once all restrictions have been removed. If employers have found that flexible working arrangements have had a positive impact on productivity and employee loyalty, then it might be something worth considering when reviewing the policies. To help maintain good working relationships, many employers are considering facilitating ‘blended' working, whereby they will offer a hybrid of working from home and working from the office.
There is no doubt that employers should expect to receive a greater number of flexible working requests once there is a more comprehensive return to the workplace. If you would like assistance with handling flexible working requests or would like guidance on updating flexible working policies, please contact Sejal Raja or Ben Dos Santos.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
