The removal of the majority, if not all, of COVID-related restrictions will come as a delight to many people, especially organisations that have been forced to operate in unusual circumstances for over a year, with a proportion of employees working remotely.

Whilst some individuals may welcome a return to the workplace, there will undoubtedly be those who have grown accustomed to the flexibility provided by remote working.  No commute, lower costs and a better work/life balance are amongst some of the key reasons why individuals are in favour of a more flexible approach to work.

With this in mind, businesses should prepare themselves for an influx of flexible working requests in the months ahead.  Whilst it may not feasible for employers to accept every request, it remains important to consider each one carefully on its own merits, to understand the individual circumstances, and if rejections are going to be made then they must do so on the allowed grounds.

Key considerations

The first thing for employers to consider after receiving a flexible working request is whether or not that individual has standing to do so:

1. Have they already made a formal request in the last 12 months? If they have, then they are not entitled to make another.
2. Does the employee have at least 26 weeks of continuous employment at the date of making the request?

For those individuals making a formal request, it must be put in writing, either in the form of a written letter or email.  Of course, it is natural for employees to briefly mention the request in conversation with their line manager, but employers should insist that this be followed up with a written request to be considered ‘formal’.

Within the request, the employee must state it is a flexible working request and that they also meet the eligibility criteria.  Remember, the more information that is provided, the easier it is for a business to make a quick decision – this means explaining the reasons for making a request and the desired working pattern you want to implement.

Requests can be wide ranging, but they are likely to cite one or more of the following as the reason for the request:

• Change of location (working from home for some or all of their contracted hours);
• Reduction or variation of days (compress working hours into fewer days);
• Flexible start/finish times or a switch to part-time hours.

Employees should be encouraged to submit requests in good time, as this will give businesses enough time to consider the request fully and thereafter implement the necessary changes, improving your chances of having a request accepted.

However, much to misconception in some elements of the media, a request for flexible working does not mean the ability to flex hours to suit the needs of the employee.  For any request to be accepted it must be capable of being adequately defined, and the more structured the greater the chance of it being accepted.  It must be noted that, unless otherwise agreed, it is a request to permanently vary the terms of their contract and once accepted may only return back by agreement.

Consider Your Options

Upon receiving a request, employers are obliged to deliver an answer within three months, allowing enough time for the individual to submit an appeal if they are not happy with the decision.

The usual course of practice is to arrange a meeting with the employee, so the request can be discussed in detail and the employer can understand what is sought and why.

After the meeting, it is the employer’s responsibility to weigh up the request and make a decision as to whether or not it can be accommodated.  Businesses must consider what impact flexible working will have on daily operations, especially if requests have been made by senior employees, whose physical presence may be needed in the workplace to oversee performance.

If an employer decides it cannot accommodate a flexible working request whether due to the nature of the request itself or otherwise due to the sheer number of incoming requests from its workforce, then their refusal must satisfy one or more of the reasons outlined 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.

When assessing flexible working requests, employers must be mindful of the overlap in protection that some employees may have under the Equality Act 2010.  Unreasonably refusing a request from employees that have such protection could lead to claims of discrimination and further complications later down the line.

Whatever the decision, whether a request is approved or rejected, the employer must communicate the reasons in writing, offering a detailed explanation and next steps if the individual is considering making an appeal.

It should be noted this is an area of law fraught with problems for the unwary and mistakes can be costly.  If in any doubt, please speak with Jason Alcock, a Director in our Employment Law team who will guide you through the potential pitfalls.  Jason can be contacted on 01543 267 196 or email jalcock@ansons.law

If you would like to be kept up to date with Ansons news please follow us on Facebook, LinkedIn or Twitter.