Flexible Working Requests

As we witness the lockdown restrictions gradually ease and businesses contemplate how they are going to operate in the ‘’new normal’’, the previous assumptions around flexible working are being questioned. Employees who have grown accustomed to remote working may decide to submit flexible working requests, and it is worth you taking the time to prepare for this, both in terms of what it could mean for the business and what you are legally allowed to do.

What is the current situation?

At the moment, if the contract of employment says that an employee must work at a particular location then you are perfectly entitled to expect them to do so. If they refuse and no reasonable reasons are advanced for doing so, formal disciplinary action could result. However, this rather drastic turn of events could be avoided by using the flexible working request process.

Who can make a flexible working request?

Any employee who has worked continuously for you for 26 weeks can put in a written request for flexible working, for any reason. An employee may only make one written flexible working request in a 12-month period – if they have done so already, then they will have to wait until another 12 months has passed since the last request.

What kinds of flexible working are available?

The types of flexible working on offer will depend on what you believe they can sustain. For example:

• A change to hours and times of work

• Work during term time only

• Increase in holiday entitlement

• A change to the place of work (if the employer has more than one location)

• Adopt part-time working

• Job sharing

• Compressed hours - working full-time hours but over fewer days

• Working from home (whether for all or part of the week)

Many arrangements will be unique to you/the employee. Since March 2020, remote working has, of course, taken precedence, where appropriate, with some employees (particularly those with childcare commitments) discussing a slightly different structure to their working day, other than the standard 9 to 5. While some employees have not coped well with remote working, for a variety of reasons, others will have seen an increase in productivity and benefits to their mental health.

Bearing this in mind, it is likely that when offices do start to re-open, many employees may submit flexible working requests that enable them to continue working remotely, if not all the time, then definitely part of the time.

Making the request

The employee can make the request in one of two ways – on a standard form, if you use one, or by email/letter.

If it is the latter, they must state that it is being made under the statutory right to make a request and specify the flexible working pattern applied for.

The employee must outline what effect, if any, they think the proposed change may have on the business and how that effect can be dealt with.

Finally, they must include the start date of the change and whether they have made any other flexible working requests - and if so, when.

How to respond to a flexible working request

The law says that you (the employer) must deal with a received request in a ‘reasonable manner’ within three months of it being made, or longer if the employee agrees with this. This will include looking at the advantages and disadvantages of the request, talking to the employee about why they have asked for flexible working and offering them a chance to appeal if the request is turned down at the first instance.

You need to remember two important factors when considering flexible working requests;

Firstly, it is against the law to subject an employee to a detriment, including dismissal, if they have made such a request.

Secondly, when considering requests, it is important to ensure that it is done in a way that avoids any hint of discrimination.

Receiving the application

The first step is to acknowledge receipt of the employee's flexible working request and if it is not completed correctly, you have the right to ask for this to be re-submitted and to state that it will not be considered unless this is done.

If, for some unreasonable reason, an employee refuses to provide you with the information needed, you can treat the application as withdrawn, and advise the employee that another application cannot be made for 12 months. It may, however, in the interests of maintaining positive employee relations, be a good idea to arrange a meeting, to discuss in detail the employee’s request.

Arranging a Meeting to Discuss the Flexible Working Request

The purpose of the meeting is to discuss the employee’s application and how it might be accommodated, or to consider alternative options.

Note: There is no specific statutory obligation on you to hold a meeting with an employee to discuss a request for flexible working, or to allow the employee to be accompanied at any such meeting. However, you have a general duty to handle statutory flexible working requests in a reasonable manner.

The ACAS code of practice also recommends that you should discuss the request with the employee and that you should allow the employee to be accompanied by a work colleague for this discussion.

The companion can address the meeting and confer with the employee during it but may not answer questions on behalf of the employee.

If the companion is unable to attend the meeting, the meeting should be rearranged. It should take place within seven days of the date of the original meeting.

You must seriously consider all flexible working requests with the aim of deciding whether your business can accommodate the requested work pattern.

What Happens If the Employee Fails to Attend the Meeting?

The employee should contact you as soon as possible to explain their absence in order that the meeting can be rearranged. Alternatively, the employer should contact the employee to query their absence and re-arrange a meeting.

Acceptance of the request

If the employee’s flexible working request has been accepted, you should let them know in writing, outlining:

• The new work pattern

• The start date

• The fact that this means a permanent change to their terms and conditions of employment (which will be put in their contract of employment)

Grounds for refusal

You can refuse a request if you have dealt with it in a reasonable manner and if you can provide a valid business reason. These are:

• It would incur additional costs

• There would be a detrimental effect on ability to meet customer demand

• The inability to re-organise work among existing staff

• The inability to recruit additional staff

• There would be a detrimental effect on quality

• There would be a detrimental effect on performance

• There would be insufficient work during the periods the employee proposes to work

• Planned structural changes

It is important to note that only the above reasons should be given, to refuse the flexible working request.

You should confirm this to the employee in writing, outlining:

• Which business reason/s apply

• Why this is so

• An explanation of how to appeal the decision

Before the pandemic, many employers would use the reason of “detrimental effect on quality or performance of work” when rejecting a flexible working request. However, given that many employees who have worked remotely will now be able to show that they have done so both productively and successfully, this reason will be more difficult to justify in future.

The employer should offer a right of appeal as part of their decision.

If you have refused to accept the employees request, then allow them to appeal the decision, giving their grounds (reasons) for the appeal. They must do this usually within 5 working days (or whatever your policy states)

The danger of tribunal claims

If, following a request for flexible working and subsequent refusal by you, the employee feels that they have not been treated fairly, or that you have not considered the request in a reasonable manner, they may raise a formal grievance and, depending on how this is handled, it could ultimately result in a tribunal claim. (If a grievance is raised, then follow your grievance procedure).

The flexible working policy

In many employment contracts or employee handbooks, there will be an internal flexible working policy, which can outline how requests will be dealt with and the means by which they should be submitted. With the new post-pandemic situation, you may want to revisit your policy to ensure that it remains fit for purpose and takes into account the change in circumstances.

The new normal

Over the past year or so, there will have been an attitudinal shift amongst employees regarding remote working, and how people view it now could well be different from how they felt about it during the early weeks of the first lockdown. It has been observed that so far, we have just seen pandemic remote working; as restrictions are lifted and the economy returns to something like normal, a different type of remote working will be possible, and this may lead to an increase in the numbers of employees wishing to work more flexibly.

Some employers may have found that enforced flexible working since March 2020 has in fact significantly benefitted them in terms of productivity, employee retention, loyalty and the mental health of staff. These factors may well be taken into account when looking again at flexible working policies.