Bulletins | October 19, 2021

Navigating a flexible future

As we transition out of the pandemic, employers should expect to see a greater number of flexible working requests from employees.

EY’s Work Reimagined Employee Survey published earlier this year found that nine in ten employees want flexibility in when and where they work, and 54% are likely to quit if they are not offered their desired flexibility. Furthermore, an ACAS survey in July 2021 found that over half of employers expect an increase in staff working from home or remotely during part of the week.

On 23 September 2021, the Government launched a consultation which outlines a range of legislative changes to “make flexible working the default”. The Government proposes to make the right to request flexible working a “day-one” right (removing the current requirement for an employee to have 26 weeks of continuous service with their employer before being able to make a statutory request). The consultation is scheduled to close on 1 December 2021. If the proposals are implemented, a greater number of employees will have the right to request flexible working.

These proposed changes, coupled with new post-pandemic ways of working, means that it is important for employers to know how to handle these requests appropriately, in order to avoid disgruntled employees, reputational damage and possibly even action in an employment tribunal.

What is a flexible working request?

Flexible working requests can cover a wide variety of working arrangements, including a change in working hours, days or patterns. Perhaps unsurprisingly however, the predominant rise we are seeing in such requests is either for hybrid working, where employees want to continue to work remotely for some of the week, or permanent homeworking.

As a result, we have seen a number of employers dealing with these requests more informally and pre-emptively, aware that employees will want to see some change to their working arrangements going forward and proactively agreeing new office/homeworking patterns with employees, rather than waiting for an employee to make a formal request under the statutory regime. Where possible, this is a sensible approach to take.

But how is a statutory flexible working request made and how does an employer handle the process?

Employees are (currently) entitled to make a flexible working request if they have worked continuously for the same employer for the preceding 26 weeks and have not made another flexible working request in the previous 12 months.

A statutory request must state that it is a request under the relevant legislation, specify the change requested, the date on which it is proposed the change should become effective, explain what effect the employee thinks making the change would have on the employer and how, in their opinion, any effect could be dealt with.

The employer’s response depends on whether the request can be accommodated, but an employer should always follow the ACAS Code of Practice on Flexible Working Requests and any internal policies.

If the employer intends to approve the request, there is no requirement for the employer to arrange a formal meeting with the relevant employee.

However, if the employer is undecided, it should meet with the employee as soon as possible after receiving the request and allow the employee to be accompanied by a work colleague. During the meeting, the parties should discuss the request and how this may affect both the employer and the employee.

When considering the employee’s request, the employer should assess the benefits of the requested changes against any potential impact on the business. A decision must be made within three months from receipt of the flexible working request, unless both the employer and employee agree to extend this period.

When making a decision over flexible working, an employer should be clear on where the employee will be working from. In particular, we have seen a huge rise in employees working abroad, often without their employer’s knowledge or consent.  This can have wide ranging implications in terms of applicable employment rights, tax and social security contributions and immigration and therefore we would strongly recommend taking legal advice before agreeing such changes.

Once the employer has made a decision, the employee should be informed in writing as soon as possible. Any changes should be documented in a contractual variation letter. 

What if an employer remains unsure?

If an employer is unsure whether to accept the request, it could suggest a trial period. The length of any trial period should be no longer than is required to make a reasonable assessment of the proposed new working arrangements and, in this situation, it would usually be worth the parties to agreeing an extension to the three-month decision period.

What are the possible reasons for rejecting a request?

Employers can reject a request for one (or more) of the eight statutory specified reasons, which are:

  • 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; or
  • a planned structural change to the business.

Is the decision to reject open to challenge?

Yes, the employee should be given the right to appeal the decision to reject their request, and an appeal meeting should be held. 

Whilst the eight business reasons given above do give an employer fairly wide scope to refuse a request, employers should be prepared that any rejection of flexible working requests may be open to challenge more easily, particularly if the request mirrors the employee’s working pattern for the last 18 months and they have performed their role successfully. Therefore, an employer would be wise to be as flexible and accommodating as it reasonably can. If a particular working pattern cannot be accommodated, an employer should ensure it can justify this with evidence and/or strong business reasons. 

If the employer refuses the flexible working request, the employee may raise a grievance, or resign and claim constructive dismissal or discrimination in an employment tribunal.   The most likely types of discrimination will be sex or disability.

When things go wrong…

A recent example of an employer failing to give proper consideration to an employee’s flexible working request can be found in Mrs A Thompson v Scancrown Ltd T/a Manors (2205199/2019).

The Claimant was employed as a sales manager by an estate agency and was well regarded in her role. The normal office working hours at the company were from 9:00-18:00. Before the Claimant returned to work from maternity leave in October 2019, she raised an informal flexible working request to work a four day week and to finish work at 17:00. The Claimant’s informal request was rejected, so she made the request formally. The employer denied the Claimant’s formal request and gave five of the eight business reasons for the decision. The Claimant appealed the decision and later resigned from her role.

The Claimant brought multiple claims to the Employment Tribunal, and was successful in her indirect sex discrimination claim. The Tribunal found that the neutral provision for sales managers to work full time from 09:00-18:00 placed the Claimant at a disadvantage due to her childcare commitments and, as a result, the Claimant was awarded compensation of £184,961.32.

Lessons to learn

Clearly, flexible working will not be possible in all industries and job roles. However, precedent has now been set that hybrid or homeworking does work in a number of roles where this was considered impossible in the past. Employers should embrace any new working patterns which have worked successfully – effectively viewing the pandemic as a trial period! It goes without saying that there are many benefits to the business in allowing requests to ensure that employees are happy, do not want to leave and diversity and inclusion are supported.