Our Associate Helen Frankland offers some insight on the law and best practice for employers handling evermore popular flexible working requests
Flexible working requests are not new in the workplace. They have however, been thrown into the limelight following the impact of COVID-19.
For both employers and employees alike, the switch to homeworking as a business continuity measure during the pandemic has revealed that in certain cases, working from home and other flexible alternatives can, with effective workforce planning, be beneficial to both employees and businesses.
While employers and employees are free to engage in informal discussions about flexible working irrespective of length of service and employment status, both parties should be aware of the statutory framework governing the regime and the ensuing rights and responsibilities which flow from it.
The statutory framework
Only eligible employees may exercise the statutory right to request flexible working. This means that the right does not apply to self-employed contractors, consultants or agency workers. The employee making the request must have been employed for at least 26 weeks by the date of the request, and should not have made a flexible working request in the 12 months preceding the date of the present request.
An eligible employee may apply for a wide range of possible working patterns, including: a change to working hours, a change to working times, and/or a change to place of work.
Among other requirements, the statutory framework provides that an application must be in writing, be dated and state that it is an application made under the statutory procedure. The employee must also specify the changes that they are seeking, and explain what effects they think the change will have on the employer and how any such effects will be dealt with. If an employee has made a previous application in the past, they must say so and state when.
An employee may withdraw a request for flexible working at any time after it has been made. However, they will be unable to make another request under the statutory scheme for 12 months from the date of their initial request. An employer may treat an application as withdrawn and notify the employee of such treatment if an employee (without good reason) fails to attend the relevant meetings set up to discuss the request or meetings related to an appeal where an initial application is refused.
Rejecting a request
An employer receiving a flexible working request has a duty to deal with it in a reasonable manner and to provide a decision within three months, or longer if the parties agree. While the law does not define what it means to deal with a request reasonably, ACAS (through the ACAS code and guide) makes recommendations on good employment practice. When deciding complaints brought with respect to the statutory scheme, tribunals must take the ACAS code into account.
A request may be refused on the grounds of eligibility described above or for one or more prescribed reasons. The framework recognises that businesses may have legitimate business reasons for refusing requests and provides 8 grounds upon which requests may be rejected. These are: (a) the burden of additional costs (b) detrimental effect on ability to meet customer demand (c) inability to reorganise work among existing staff (d) inability to recruit additional staff (e) detrimental impact on quality (f) detrimental impact on performance (g) insufficiency of work during the periods the employee proposes to work; and/or (h) planned structural changes.
It’s important to note that an employee is not obliged to give any particular reason for making a request. None of the prescribed grounds of rejection relate to the personal circumstances of the applicant, but to the impact of the request on the business.
Employers should tread carefully if they wish to refuse an application purely on grounds of eligibility, as this may open them up to the possibility of other claims. The employer should consider whether they should take the application into account despite it not meeting the eligibility criteria.
Outright rejecting an employee’s flexible working application on account of a technical flaw is a high-risk approach. The more prudent approach would simply be to inform the employee of the technical fault and advise them to re-submit an amended application rather than attempting to argue for example that an application is not dated. Refusing an application on a technical point could result in a claim under the Equality Act 2010 or a constructive dismissal claim.
Some practical points: the application process
When it comes to the application itself, there are some practical points for employers to bear in mind.
- Having written policies and procedures in place is always a good idea
Implementing these measures will ensure that requests are considered promptly and consistently. Well drafted policies will also provide certainty to employees. This means that employees will likely be aware of the circumstances within which requests may be refused and so reduce the risk of tribunal complaints where applications are rejected in line with the policy. Furthermore, having in place a policy can be a helpful management tool provided that managers are effectively trained on the application of the policy.
- Be open to exploring alternative approaches
If the proposed working pattern in the application cannot be accommodated, employers should consider alternative ways to meet the employee’s objectives. It may be possible to agree a time-limited change or consider whether the employee’s short-term needs can be met by taking annual leave. Trial periods can also be beneficial to both parties.
Employers should ensure that decisions in relation to flexible working requests are consistent and can be objectively justified. It is also important to bear equality laws in mind and to make sure that decision-making is not discriminatory against any employee because of a protected characteristic such as on the basis of sex, age or disability. It can often work well to appoint a particular manager (such as HR) to oversee the decision-making process and act as a quality control in ensuring that decisions are made fairly and that the basis of rejection of any request is also consistent with previous decisions.
The statutory framework recognises that businesses may have legitimate business reasons for refusing requests and provides eight grounds upon which requests may be rejected. Of course, the fact that an application for an employee in a similar set of circumstances was approved does not mean that all requests from employees in a similar position should be approved. For example, it maybe that external circumstances (customer demand, technology, overall staffing levels, etc.) have changed, which may influence an employer’s decision when considering any subsequent requests.
A flexible future?
Even after restrictions have been lifted, it is expected that many employees will be making requests with a view to being able to continue working flexibly in some form. In doing so, they may point to the success of the extensive “trial period” imposed by lockdown as evidence as to why such requests should be granted – particularly if they can demonstrate that this has had an increased effect on performance and/or productivity.
The rigid 5-day office week has become for many something of a blast from the pre-pandemic past. Just how fleeting this sentiment is remains uncertain at present, and so the question stands: is the future of work truly flexible?
If you require any guidance on managing flexible working requests and managing your employees in a post-covid workplace, our employment team are here to help. Call us on 0161 969 3131 or fill in our contact form and one of the team will be in touch.