[Employment] Flexible Working
27 August 2021
Now that staff are being asked to return to office-based working for all or some of the time, we are seeing an increasing number of clients faced with requests for flexible working, meaning a request to continue working from home. How is an employer supposed to react to such a request?
What is flexible working?
Flexible working means a change to working conditions that is desired by an employee relating to their hours and times of work or their work location.
Who can request it?
Anyone can informally, but employees with over 26 weeks’ service have a statutory right for their flexible working request to be considered under the Employment Rights Act 1996. But note that staff can make only one statutory request in any 12-month period.
What has to be in the request?
It has to be dated, it must set out the change sought and when the employee would like it to start. It needs to state the effect, if any, they think the requested change would have on you as the employer and how, in their opinion, any such effect might be dealt with. It should say that it is a statutory request and if and when they have made a previous request. If a request does not contain this information, you can refuse it on technical grounds. However, that is a high-risk strategy and the employee can then always make a compliant request without offending the 12-month rule.
If you anticipate receiving these requests, it would be a good idea to set out in a policy document what information employees need to include and your procedure. We can assist in drawing up a suitable policy.
What should we do with a request?
You must consider it seriously in a reasonable manner and respond with a final decision in writing within three months. If you are approving the request then a meeting is not needed but, if not, you should arrange to talk privately with your employee as soon as possible to get a better idea of what change they are looking for and how it might benefit your business and them. You should allow them to be accompanied by a work colleague for this and you should consider allowing an appeal against any refusal.
How do we decide whether or not to grant it?
You need to consider the benefits of the requested changes in working conditions for the employee (and your business) and weigh these against any adverse impact of implementing the changes. You should think about operational and day-to-day issues, like the employee’s need to attend work meetings. If you accept the request or accept it with modifications, you should discuss with the employee how and when the changes might best be implemented. If you are not sure, you can agree to have a trial period and, to allow this, you will probably agree to extend the three months for a final decision.
Can we reject the request for any reason?
No. It must be for one or more of the business reasons set out in the legislation. Although there is no specific requirement that the decision is reasonable, it can still be challenged if you made it on incorrect factual grounds. The reasons are:-
the burden of additional costs;
an inability to reorganise work amongst existing staff;
an inability to recruit additional staff;
a detrimental impact on quality;
a detrimental impact on performance;
a detrimental effect on the ability to meet customer demand;
insufficient work for the periods the employee proposes to work; and
a planned structural change to your business.
Are there other legal factors?
Yes. In considering the request you must not discriminate unlawfully against the employee. That means you should not refuse a request because of their protected characteristics, like nationality (which would be direct race discrimination). The request might be one for a reasonable adjustment because of a disability. It could involve indirect discrimination too: for instance, a requirement that all staff work full-time from the office might be indirectly discriminatory against female employees who disproportionately tend to have childcare responsibilities. Indirect discrimination can be justified if the requirement is a proportionate means of achieving a legitimate aim, involving business considerations much like those listed above. In some cases, a refusal to grant flexible working could even provide grounds for constructive dismissal.
What do we do if the request is accepted?
You should issue a statement setting out the variation in terms either in the form of a new contract or a letter. Then everyone will be clear about what was agreed.
What can an employee do if we refuse the request?
They can make a claim to an employment tribunal and the tribunal could order a reconsideration of the decision and/or up to eight weeks’ pay as compensation. The tribunal can’t question the commercial rationale behind your decision or substitute its own decision. However, it can look at your procedure and whether you took the request seriously. It can also consider if your decision was based on correct facts and whether your reasons fell within the permitted grounds.
It is therefore advisable to seek legal advice when faced with any flexible working request.
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