Increased flexible working has become the new ‘norm’ during the Covid-19 pandemic. This is as a result of Government guidance and employer and employee choices. However, with lockdowns easing across the UK, increasing numbers of people will be getting ready to start returning to their workplaces. While the Government isn’t yet at the point of giving full clearance for this to happen across the piece, the signs are that ministers are keen to encourage a move back to physical workplaces once it’s safe to do so. And for many people, that will be a cause for celebration.
But not everyone. It appears that in many instances, increased flexible working as a result of the pandemic has whet people’s appetites for more flexible arrangements in the not-too-distant future. This article from People Management refers to research carried out last summer that suggested it looked set to double. Since then, various studies continue to indicate that more people are likely to request some form of flexible working arrangement going forward.
For some employers, increased flexible working will be no issue at all. They might welcome it and the many advantages it offers. But others might find an increase in requests could present them with some headaches. Our Founder, Jude Read was asked her views on home working for the People Management article above and as her comments reflect, it’s not always straightforward to accommodate. While it can work well for some employers, it can be rather more complicated for others. By their very nature, some businesses will require at least a proportion of staff to be on site. And while some departments might be able to allow some people to work flexibly, that might not apply to everyone and could cause some resentment.
Where do you stand in your business? Do you know how to handle flexible working requests? And what should you do if you have requests and you don’t feel your business can accommodate them?
What are the rules around employees making flexible working requests?
As an employer, you are quite likely to receive increased flexible working requests as employees are slowly required to return to the workplace. It’s really important to be ready to deal with flexible working requests, ideally in the form of a flexible working policy. Remember that flexible working is more than just the location where employees work. It encompasses a raft of measures, including part-time working, job sharing, and flexibility over core hours. Employees could be asking about any of these in their request.
If an employee has at least 26 weeks’ continuous employment, they’ve a statutory right to make a request once every 12 months with regards to how many hours they work and when and where that work is done. The request must contain certain information including the changes the employee would like, the date they’d like them to be effective from and the impact the employee thinks it would have on the business and how it could be managed. Note that it’s down to you as the employer to advise employees about the details they need to include.
Although this statutory right to make a request only applies to employees with the appropriate length of service, any employee can make an informal non-statutory request at any time, and as many times as they wish. (Professional bodies including the CIPD are currently calling for the statutory right to request flexible working to be given from day one and allowed to happen more than once a year, so there may be some changes coming up in the future.)
How should you respond to a statutory request?
Acas has provided useful guidance about the steps you’ll need to take in its Code of Practice. Be aware that if you ever faced an employment tribunal connected to flexible working, it would take into account whether you’d used the code to help reach your decision.
Essentially, it’s designed to help every employer deal with requests in a consistent, prompt and carefully considered way. Unless you are happy to go ahead and approve a request immediately, the first thing you’ll need to do is to meet with the employee as soon as you can to find out as much information as possible and to enable you to explore all options. Employees can bring along a work colleague if they wish to this meeting (and to the subsequent appeal if applicable).
The legal right is only for the employee to make the request and have it fully and properly considered. As the employer, you can refuse a request on one or more of the following grounds once you’ve given it careful consideration:
- The burden of additional costs
- An inability to reorganise work amongst existing staff
- An inability to recruit additional staff
- A detrimental impact on quality
- A detrimental impact on performance
- A detrimental effect on ability to meet customer demand
- Insufficient work for the periods the employee proposes to work
- A planned structural change to your business
You’ll need to let the employee know your decision in writing, within three months of the date the request was submitted (unless mutually agreed otherwise). That three months must include time for the appeal if the initial request is rejected. Make sure that the reasons for rejection are clearly laid out if that’s the decision you’ve reached, and advise the employee of their right to appeal.
A few other points to remember during the process…
If you don’t think the flexible working arrangement would be viable in the way the employee has asked for it, that doesn’t mean you have to say no. You could also consider whether a modified version of their request could work for you both. Alternatively, you could suggest a defined trial period to test the impact of the changes.
Be very careful to make sure you don’t discriminate, directly or indirectly, against the employee, opening you up to claims. It’s really important for a company to take a consistent approach, otherwise you could face grievances from employees who feel they’ve been treated unfairly relative to another member of staff.
One important point to be mindful of is whether you made any specific contractual commitments during the pandemic. While in many cases flexible working will clearly have been a temporary arrangement to comply with lockdown requirements, there could be a potential risk if anything was agreed contractually. If you’re unsure whether that could be the case, seek advice.
Do you need some support with your approach to flexible working?
If you would like some expert HR advice to help you understand the best ways to manage flexible working requests in your company, and to ensure you don’t expose yourself to any risk, please do feel free to give us a call on 01455 231982. Alternatively, you can complete our contact form.