Beyond the pandemic: the rise of flexible working requests

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Beyond the pandemic: the rise of flexible working requests

24 December 2020

In March 2020, the sudden onset of the Coronavirus pandemic turned working practices upside down – prompting an office exodus and a widespread uptake of working from home.  Experiences have varied, though for many the change has conferred considerable benefits – not least radically reduced commutes and an improved work-life balance. A recent study by Southampton and Cardiff universities, which polled several thousand employees, identified that 90% of employees who worked from home during the Spring lockdown said they would like to continue doing so in some capacity. 
 
Although returning to normal life still seems several months away, there are those that may not want to fully return to the office when the time comes. The following thought will have crossed the minds of many: “If I have effectively worked from home for X months, why can’t I carry on this way?” Accordingly, employers need to brace themselves for changed attitudes and a likely rise in both informal and formal requests by staff to change working patterns. 
 
Employment Solicitor Will Chrusciel explores the law surrounding requests for flexible working, in advance of a potential surge in requests. 
 

An “informal” non-statutory request v. a “formal” statutory request

At any time, any individual (regardless of legal employment status) is able to request changes to their working arrangements – it is simply a case of asking their employer to agree changes, and then effecting any variation which the employer is willing to agree to. 
 
An employer generally has “free rein” to decide on these “informal” requests – though care should be taken to ensure that a refusal (or indeed, the manner of refusal) is not discriminatory, or runs the risk of a constructive dismissal claim (e.g. by destroying the relationship of trust and confidence between the two parties).
 
Since 2014, eligible employees have also enjoyed the right to request flexible working in accordance with a formal statutory procedure – with certain obligations being placed on employers when answering such requests. Non-compliance can result in tribunal claims and compensation being awarded to the employee (up to eight weeks pay, subject to a cap).  
 

Who can make a statutory request? What form must the statutory request take?

Only a legal employee (i.e. a person who is working under a contract of service) who has worked continuously for their employer for at least 26 weeks can make a request for flexible working via the statutory procedure – so most agency workers and self-employed workers and contractors are excluded. Only one request can be made in any 12-month period. An employee can request a change to their hours of work, their times of work, or place of work. The changes requested can be permanent or temporary. 
 
A statutory request must:
  • Be in writing;
  • Be dated;
  • Tell the employer that the request is being made under the statutory procedure;
  • Tell the employer of the change that is being sought, including when the change is to take effect;
  • Tell the employer if the employee has previously made a request, and if so, when this was; and
  • Explain the effect that the change would have on the employer and how this might be dealt with. 

What must an employer do once they have received a statutory request?

An employer must consider and deal with the request in a reasonable manner, tell the employee of their decision within 3 months (or within a longer period, if agreed), and if rejecting the request, only do so on one or more of eight specific grounds. 
 

How does an employer “deal with requests in a reasonable manner”?

As the legislation provides only very general wording, an ACAS Code of Practice steps in to provide concise guidance on “dealing with requests in a reasonable manner” (https://www.acas.org.uk/acas-code-of-practice-on-flexible-working-requests/html). 
 
Whilst not legally binding on an employer, the Code will be taken into account by a Tribunal when presented with a complaint by an Employee, and it is recommended that employers follow the Code. Best practice, therefore, includes:-
  • Arranging to talk with the employee as soon as possible (and informing them of their right, and subsequently allowing them, to bring a work colleague to a meeting). Any meeting should take place in a private, confidential setting. If an employer is happy to accept the request without discussion, then a meeting is not needed. The meeting should discuss the request with a view to better understanding the changes requested, the pros and cons, and any impact of the proposed changes.
  • Considering the request carefully, weighing up the benefits of the changes to the parties against any adverse impact on the employer (and in doing so, not discriminating against the employee).
  • Informing the employee of any decision as soon as possible (this should be in writing).
  • If the request has been accepted, with or without compromise, discussing with the employee how and when the changes will be best implemented.
  • If the request has been rejected, allowing the employee to appeal the decision. The Code also promotes holding another discussion in this instance (again, the employee should be informed of their right, and subsequently allowed to bring, a work colleague to any appeal meeting). 
  • If the request is to be rejected, only rejecting the request for one of the specific reasons – this isn’t just best practice, this is mandatory (see below).

Rejecting a Request?

If refusing, the reason must be one or more of the following eight grounds:-
  1. The burden of additional costs
  2. An inability to reorganise work amongst existing staff
  3. An inability to recruit additional staff
  4. A detrimental impact on quality
  5. A detrimental impact on performance
  6. A detrimental impact on ability to meet customer demand
  7. Insufficient work for the periods the employee proposes to work
  8. A planned structural change to the business.
In reality, employers do not face a high hurdle in justifying a refusal to accommodate changes – if they believe that one of the eight business reasons applies and provide that reason (in accordance with their consideration), then unless the decision is based upon incorrect facts, the employee will have usually have no recourse to challenge the merits of that decision (providing other procedural points have also been complied with, including those discussed above). 
 
In the COVID context, employers may find that considerations relating to the fourth ground (a detrimental impact on quality) and the fifth ground (a detrimental impact on performance) above may be particularly relevant when assessing whether to allow an individual to continue working from home on a full-time or part-time basis. 
 

Accepting a Request?

Any agreed changes will take effect as a variation to the employee’s contract of employment. This could be permanent, or apply for a time limited period.  A trial period might be appropropriate.  Crucially, at a minimum, an employer must issue the employee with a statement outlining the changes to the employee’s terms within one month of the changes taking effect – specific legal advice should be sought on this. 
 

Key take-aways

With the ongoing roll-out of the Coronavirus vaccine in the UK, a return to normal working life is perhaps on the horizon (if still several months away). Some employees may decide that they would like to work permanently from home rather than in the office, or more likely, retain flexibility to do both. Employers need to be mindful of changing attitudes, and assess the impact of allowing working from home on a complicated range of issues - including productivity, learning, training and development, visibility, impact on clients/colleagues, the need to retain key talent, and cost – and do so on a case-by-case basis.  
 
Above all, when dealing with statutory requests, employers should:-
 
  • Evidence compliance with the statutory scheme and Code of Practice
  • Attempt to understand the reasoning behind the request from the start – this will ensure the employer understands what is really at the heart of the request and may be conducive to a negotiated solution, rather than an outright rejection, if the initial request is not palatable. It will also aid visibility on the request being related to any protected characteristic under the Equality Act 2010, which is important in order to avoid discrimination. 
  • Keep an open mind, whilst ensuring consistency in the process – it may be advisable to have written flexible working guidance for managers so that there is standardisation of procedure and approach.
 
For further information on this contact a member of our Employment Law team
 
Girlings has offices in AshfordCanterbury and Herne Bay.

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