Posted on September 29, 2021
As employers it is important to understand why flexible working applications are made, how to handle them and in which circumstances it may be refused.
The right for employees to request flexible working has been enshrined in law since at least 2003 but the issue has perhaps never been as pertinent as it is now.
Although the right to request flexible working is a statutory right, traditional attitudes towards such working practices have often harboured negative biases, with those on flexible working terms being perceived as less ambitious or committed to their roles.
As with most things this past year however, a year of working from home due to Covid has seen much of what we do, why we do it and how we do it turned on its head.
The evidence from the past year shows that both employers and employees are now very much alive to the fact that working from the office does not necessarily equate to productivity and that there is no longer a one size fits all approach when it comes to working hours. Employees have seen that it is possible to achieve changed patterns of work and are reluctant to go back to old habits.
The role of women in the workforce and a general consensus that more needs to be done to create equal opportunities and retain this pool of talent has also never been higher on the agenda.
A cultural paradigm shift in the world of work has clearly taken place and employers can certainly anticipate a deluge of flexible working requests as we navigate a return to normal.
Flexible working requests can only be made by employees with at least 26 weeks’ continuous service. The right to request flexible working does not apply to agency workers or self-employed contractors. A request by an employee with less service than this may be validly rejected.
An employee may also only make one request in any 12-month period. This is no bar however to informal requests being made.
Employers can anticipate a variety of innovative changes to work patterns as requests are required to relate to a broad spectrum of the usual arrangements for work including:
Such variations can lead to entirely new working arrangements such as job shares, part time working and working from home. The changed working pattern will necessitate the need for employers to review and modify existing contractual arrangements between the parties.
For the request to be valid under the statutory regime, an employee must make the request in a prescribed manner which includes:
Employers have to also abide by the statutory regime and therefore have to deal with flexible working requests in a prescribed manner which includes:
There is no statutory definition of what constitutes “reasonableness” in the context of statutory flexible working requests. However, guidance from ACAS provides that for a request to be dealt with reasonably it needs to be considered objectively and carefully by the employer taking into account the advantages and disadvantages to the business.
An employer must also effectively consult with the employee, meeting with them to discuss the request and must allow them to bring a representative to any meetings. The employer needs to be completely transparent about how the requested changes may affect the employee’s terms and conditions of employment.
Requests may only be refused on permitted grounds which include scenarios where the business will face additional costs; if client demands cannot be met; if work cannot be re-organised between staff; if additional staff cannot be recruited; if there may be a negative effect on the quality and performance of work; if there will be insufficient work for the employee to do or if the business itself had intended structural changes before the request was made.
If the request is agreed, the business must put this in writing to the employee alongside, detailing the changes to the terms and conditions of their employment.
Refusals too must be set out in writing detailing the grounds on which the request is rejected alongside an explanation of the reasons. It is good practice to allow the employee the opportunity to appeal although this is not prescribed in law.
The price of failing to deal with a flexible working request properly can cost a business time and money, as employees have the right to present complaints to the Tribunal for any procedural flaws.
It is therefore essential to have in place a robust process by which to scrutinise and respond to flexible working requests as well as having clear flexible working request policies in place at the outset.
Posted on September 29, 2021
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