Remote requests

Tina Chander, Partner and Head of the Employment team at law firm Wright Hassall with advice on how to deal with an expected surge in flexible working requests

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 difficult to meet expected customer demand;
• The inability to redistribute work among colleagues;
• The inability to hire new staff to fill gaps left;
• 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 afforded 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 staff 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.