Dealing with flexible working requests

As the country starts to reopen and people return to work, there may be a wealth of flexible working requests being made by staff for employers to consider.

An O2 commissioned report published in May, based on an ICM study of 2,019 workers in the UK and a YouGov survey of 4,509 (of whom 2,394 were workers) found that 33% expected to increase the amount they work from home by at least three days a week after lockdown, and 81% expecting to work from home at least one day per week.

Flexible working is often seen as a benefit to an employee, in order to merge their personal and business life commitments, and much of this is true. However, flexible working may also be something that more businesses will strive for going forwards, as the economic pressures of the pandemic hit, or as businesses realise that the great working from home experiment of COVID-19 has worked in their favour, saving them money and resource.

Of course, flexible working requests are not just circulated around the place of work but may concern a number of other changes to the employment contract.

All employees (save for some particular statutory exceptions) with at least 26 weeks’ service have the right to make one statutory flexible working request in each 12 month period to their employer. They do not have to provide the reason for making it, and it can be in relation to the hours or times of work, or the place of work.

Although other employees and workers do not have the statutory right to make a flexible working request, any individual might approach the employer or engager with a request to change their terms of employment, and it would be wise to consider these more informal requests even though the statutory scheme does not apply. This is because although there may not be any risk of breaching the statutory scheme, a failure to consider such requests properly could give rise to claims in discrimination and potentially constructive unfair dismissal.

Whilst providing a reason under the statutory scheme is no longer a requirement, it can be helpful for the employer to be aware of the reason for the change so that they are aware of any potential risk of discrimination or can be aware of the rationale behind the change if they cannot accept the proposed change but want to suggest an alternative.

For example, if the flexible working request is provided by an individual who wants to semi-retire and is asking to change from five days per week to three, they may be able to be flexible about which three days they wish to work. However, if a request is made to work school hours only in order to support childcare, it may be more difficult for a compromise to be sought.

The key thing for employers to remember is that all eligible employees can request a change under the statutory scheme and it no longer has to be for child or other caring responsibilities.

If an application is made under the statutory scheme, employers must consider the request fairly (and there is a comprehensive ACAS Code of Practice on Flexible Working that may be helpful) and discuss the request with the employee. The final decision (including any decision on an appeal) must be made within three months of the request being made unless an extension is agreed. The request may (a) be accepted, (b) be rejected or (c) be accepted on a varied basis with agreement from the employee.

If the employer wishes to reject the request in full, it can only do so on one of the grounds specified within the legislation:

• 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 the ability to meet customer demand
• insufficient work for the periods the employee proposes to work
• a planned structural change to your business.

In the post-COVID era, employers should be mindful of declining flexible working requests if the individual has been working in line with their proposed change on an acceptable basis during the lockdown, as this could be seen as a trial period and it may be difficult to justify why it cannot continue.

It is also important to be mindful of arguments around discrimination, whether the request is made through the statutory scheme or informally. Even if a rejection can fit within one of the specified grounds, it may still be discriminatory on an indirect basis, or a failure to make reasonable adjustments if the request is made to accommodate the needs of a disabled person.

What if more than one request is made at a time?

ACAS suggests that requests be dealt with on a “first come first served” basis, but it would be wise for employers to act pragmatically if more than one request is received. For example, if there a way to allow both requests, or, if one is only required for a temporary basis, can a compromise be reached with the other individual to agree to the change on a future date basis.

A failure to consider requests under the statutory scheme carries the risk of a claim in its own right, but there are also claims for detriment, dismissal and discriminatory treatment for employers to be mindful of. As a result, they should ensure that they consider any request made carefully and reasonably, and take advice where required.

Further information

For specific advice for your business, please get in touch with our specialist Employment Law team through this website or by calling 0330 404 0778.

Our partners at Ashtons HR Consulting are also on hand to assist you.

This information is correct at 9.00am on 26 June 2020.