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Following an extended period of widespread
remote working, there is still an expectation
that many of those returning to the workplace
will be looking to continue a culture of flexible
working on a long-term basis. Employers should
expect a lot of formal requests in the months ahead.
No commute, lower costs and a better work/life
balance are some of the key reasons why employees
prefer flexible working, and whilst it would be nice to
boost team morale by accepting every request that
comes through, unfortunately it is not feasible for
organisations to do so. However, employers should
take the time to consider each request on its own
merits to see if a compromise can be reached.
The first consideration for an employer is whether
the employee is eligible to make a formal flexible
working request. To make a request, an employee
must have at least 26 weeks of continuous
employment and cannot have made a similar request
within the last 12 months.
WHAT TO EXPECT AND IMPORTANT
CONSIDERATIONS
Firstly, it is important to note that any request for
flexible working must be made in writing so there is a
written record of this, email being 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.
The flexible working request should, for clarity,
state that it is a flexible working request and that
the employee meets the eligibility criteria, explain
the reasons for the request and provide any other
information in relation to 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, an employee can only make one formal
flexible working request in any 12-month period,
and so employers should check their records to
ensure no such request has been made within this
timeframe.
Flexible working requests can be wide ranging, but
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 for
their working day.
Having received a request, the employer must
deliver an answer within three months, allowing 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 made and the usual course
of practice is likely to be to arrange a meeting with
the employee to discuss their request further.
REASONS TO REFUSE A REQUEST
There will inevitably be circumstances where
employers cannot accommodate a flexible working
request; an outcome which may become more
necessary if numerous requests are being received.
However, employers must remember that they 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 diƒ icult to meet
expected customer demand;
The inability to redistribute work among
colleagues;
The inability to hire new staƒ to fill gaps le– ;
Service quality will be negatively impacted by
changes;
Performance of the business will be reduced by
any change;
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 and 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(i) before deciding whether to accept or refuse
their requests. Refusing a request from employees
aƒ orded such protection could result in claims
of discrimination, which can be very costly for
employers.
WORKING THROUGH LOCKDOWN MIGHT
BE A PROBLEM
Encouraged by maintained productivity levels
throughout lockdown, a lot of organisations have
warmed to the idea of flexible working. However, it is
still highly unlikely that businesses are in a position to
accept every single formal flexible working request,
especially if a large percentage of the workforce are
all asking for similar outcomes.
Not only this, but in some businesses, physical
workplace presence is needed to ensure operations
continue as expected, particularly for senior staƒ
members who are responsible for managing a
team of people. Therefore, each request should be
considered on its own merits – there may be scope
for some compromise, but the interests of the rest of
the workforce should be kept in mind before requests
are accepted.
Remember, some flexible working requests will be
from full-time employees who are looking to change
to part-time working hours, so it is best practice to
understand the reasons why an individual is making
the request, as it may also deliver benefits for your
organisation.
REMOTE REQUESTS
Tina Chander, Partner and Head of the Employment team
at law fi rm Wright Hassall with advice on how to deal with
an expected surge in fl exible working requests
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REFERENCE NOTES
www.wrighthassall.co.uk/expertise/employment-lawand
hr
(i) https://www.legislation.gov.uk/ukpga/2010/15/contents
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