Flexible Working Requests - A Summary

Partner Sue Dowling, in our Employment Law team, explains flexible working requests.

We will all have noticed the busier roads and bustling commuter trains in recent months, as a result of more offices opening up again and employers encouraging their workers to physically return to work. Returning to a greater degree of normality will have come as a great relief to many people. However, for some, the prospect of changing their now established routine and returning to their place of work may be causing some anguish.

As a result of the pandemic, a significant proportion of the UK’s workforce had been working from home since spring 2020. No doubt many employees will relish their return and seeing colleagues face-to-face again, while relying less on virtual meetings. Others, however, may wish to continue to work effectively from home and to enjoy the benefits that can come with remote working, such as saving on travel time and costs.

Flexible working requests

Flexible working is a way of working that suits an employee’s needs, for example: flexible start times, finish times, shared working or working from home.

As a result of the pandemic, the Government has recently published a consultation document entitled ‘Making Flexible Working the Default’ which proposes to reform the existing flexible working legislation. Proposals have been brought about to take into account the recent change in working practices and the recognition of the greater need for flexibility in respect of work/home-life balance.

Currently, any employee who has 26 weeks of continuous service is legally entitled to submit a flexible working request (they may only make one such request in any 12-month period). However, the Government will consider whether to change the requirement of 26 weeks’ service to a right to make a flexible working request from ‘day one’. The Government will also consider whether an employee is allowed to make more than one request in any 12 month period.

Considerations

Employers should deal with flexible working requests in a reasonable manner and cannot just dismiss them out of hand. For some employers, a request from their staff to work from home full time may well be contentious. Therefore, employers should make considered decisions taking in to account all the facts and circumstances surrounding the request.

When dealing with flexible working requests employers should consider the needs of the business and assess the advantages and disadvantages of employees working from home. It may be that the needs of the business do not require all employees to work in the office full time. That said, some employers may feel that their employees’ productivity is reduced when home-working. Employers may also have legitimate concerns about the isolation their employees may experience when physically absent from the workplace for prolonged periods of time. And, of course, an employer may wish to give due consideration to the preferences of their employees – unhappy employees are rarely the most productive.

It is also important when considering a flexible working request that you do not unlawfully discriminate against an employee. For example, a disabled employee may be reluctant to go back to working in the office if they have an underlying health issue, which means that the risk of contracting COVID-19 is more of a concern to them.

In a recent case, the Employment Tribunal found that an employer’s refusal to accommodate a sales manager’s flexible working request relating to childcare arrangements amounted to indirect sex discrimination. The employee in question was awarded more than £180,000 by the Tribunal as compensation. This case demonstrates the importance of giving flexible working requests due consideration.

Currently, if an employer rejects a flexible working request, then it must be for one of the following business reasons:

• the burden of additional costs,
• an inability to reorganise work amongst existing staff,
• an inability to recruit additional staff,
• a detrimental impact on quality and performance,
• a detrimental effect on ability to meet customer demand,
• insufficient work for the periods the employee proposes to work, or
• a planned structural change to your business.

The Government’s consultation on the flexible working legislation also includes to address whether the above ‘business reasons’ are still valid and whether they need to be broadened.

Process

If applicable, managers should consult their employee handbook to ensure all flexible working requests are dealt with equally. As a first step it would be advisable for an employer to hold a meeting with the employee to discuss their request. It is reasonable to ask the employee why they wish to work from home. It may be that they have concerns regarding the safety of their workplace and would be open to return if steps were taken to ensure their safety.

An employer should consider any other options if remote working is not possible, for example flexible start and finish times. An employer may also wish to consider implementing the change for a limited period of time to cover specific circumstances or consider having a trial period before finalising their decision. Whatever the outcome, a response should be prepared promptly and certainly within three months of receipt of the request.

As mentioned above, the Government is currently undergoing a consultation period regarding reforming the current flexible working legislation, therefore there are no changes in the law for now. The consultation period will end very shortly on 1 December 2021.

If you have received a flexible working request and are not sure how to deal with it, please do not hesitate to contact our specialist Employment Law team, who will be happy to assist you.

For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.