In the past, employers have tended to respond in three ways to a flexible working request:
• “No, we never have part-time roles! We work 09:00 to 5:00, Monday to Friday!”
• “That’s all agreed. How about starting the new arrangement next week?”
• “We are sorry but after careful consideration we are unable to accommodate your request due to the following business reasons…”
Since the pandemic employers have had to rethink their approach to flexible working particularly when it comes to homeworking. Overnight, homeworking became a necessity to respond to legal requirements, protect against health risks and to enable working parents to care for their children.
What’s the trend likely to be?
Currently, publicity around the issue of flexible working is gathering momentum most likely triggered by the fact that the end of the current national lockdown may now be insight. Flexible working is broader than just homeworking and could involve a shorter working week or even term-time working.
Larger employers are acknowledging that flexible working will be on the table for their workforces, with the tech sector leading the way. While the drivers for these organisations may be cost savings because the workspace can be downsized or the roles are more suited to a more flexible approach to the working day, for many organisations flexible working may not be suitable or sustainable in the long-term. This is likely to become more apparent during the pandemic recovery period.
What are an employee’s current rights?
After 26 weeks’ service an employee is entitled to make a request for flexible working.
Employers need to ensure that a proper process is followed when considering a request, which will involve a right of appeal. All this has to be done within a three-month period.
A request can be refused but only on one of more of eight defined business reasons.
Are employers likely to be faced with more requests?
There is already some indication that there will be more formal requests for permanent flexible working arrangements as flexi-furlough and homeworking arrangements start to be withdrawn.
Some employees may still be concerned about returning to work because of health risks. In other cases, the pandemic and a positive experience of flexible working may lead to employees wanting to ensure they have a better work life balance. Other employees may consider it is now an automatic right.
Expectations will be different and employers are going to have to be ready to manage this.
How should employers be preparing for a request
Employees should be treated in a fair and consistent way to manage any legal risks. Answering the following questions will help you assess how ready you are:
•What is our policy on flexible working?
This about the organisational culture and attitude and whether your response would be the first response identified above.
•What procedure will we use?
This is about ensuring that requests are dealt with in line with legal requirements. There is a statutory scheme and Acas has a Code of Practice and guide on handling requests.
• On what basis can a request be rejected?
One or more of the eight business reasons must exist together with the supporting evidence. If flexible working was the norm during the pandemic, it may be harder to reject a formal application in the future.
• How would you deal with competing applications?
Several applications arriving at the same time is a probability as restrictions ease. Requests must be dealt with in a reasonable and consistent manner. Employers should not be making decisions based on the most deserving request.
• Do you know what the legal risks are?
Tribunal claims are a possibility. Employers can be asked to reconsider their decision or pay compensation (a maximum of eight weeks’ pay). However, the more significant risks are constructive dismissal and discrimination complaints.
What does the future hold?
For the time being, employers can stand firm that there is not automatic right to flexible working and make decisions within the parameters of the eight business reasons. However, there is every possibility in the future that the government will make flexible working a right from the first day of employment i.e., the default position; employers will need to have a good reason not to offer a role on a flexible basis.
For certain roles it will be obvious that flexible working is not going to be an option. However, when it can work it can employers are likely to benefit from increased productivity and engagement.
FG Solicitors employment law specialists offers a proactive and practical approach, providing employers with confidence when it comes to managing their day-to-day employment law and HR issues.
If you are not sure if flexible working should be the new norm for your business or are concerned about managing a formal request, find out what you CAN do by contacting FG Solicitors on 0808 172 9322 for a no obligation discussion.
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This update is for general guidance only and advice should be taken in relation to a particular set of circumstances.