With the country set to lift all restrictions in July, employers might have to prepare for the flood of requests to change working conditions to accommodate those staff who have become accustomed to working away from the office. Tina Chander, partner and head of the employment team at law firm Wright Hassall, explains the procedures that must be taken and considered when addressing this change up.
Despite the government recently confirming that the lifting of restrictions has been postponed until 19 July, working life is steadily returning to normal.
One difficulty already causing headaches for employers is the desire of many employees to continue a more flexible approach to their work, having become accustomed over the last year or so to no commute, lower costs, and a better work/life balance.
Whilst it is unlikely to be feasible for employers to agree to every such flexible working request, businesses must consider each request on its own merits.
The first consideration for an employer is whether the employee is eligible to make a formal flexible working request. Where the request is made by an employee, who has at least 26 weeks of continuous employment and has not made a formal flexible working request during the last 12 months, the employee will be entitled to make a request.
What to expect and important considerations
Firstly, it is important to note that any request for flexible working must be made in writing – email is also 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, 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 such and that the employee meets the eligible criteria, explain the reasons for the request and provide any other information in relation to the desired working pattern that they believe 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 above, 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.
- A reduction or variation of the days the employee works.
- A reduction or variation of working hours – 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.
Reasons to refuse a request
There will inevitably be circumstances where employers cannot accommodate a flexible working request. 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.
- 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 before deciding whether to accept or refuse their requests. Refusing a request from employees afforded such protection could result in claims of discrimination.
Working through lockdown might be a problem
In the post-lockdown working world, many employees will be keen for their employers to adopt a long-term culture of flexible working, which they will inevitably argue has now been proved to be effective with minimal impact on business productivity.
However, whilst trying to accommodate genuine requests, dividing a workforce in more ways than one, can be a problem. It is important to consider the impact of having some workers at home and some in the workplace, as it can cause a disconnect between colleagues.
As the workforce leaves lockdown with a very different approach to the work/life balance than when it went in, employers must prepare for the inevitable requests for flexible working.
