Flexible working requests post lockdown - employer FAQs

There is no doubt that the coronavirus pandemic has brought the subject of flexible working to the forefront.

The majority of office workers in the UK have worked remotely for over a year, and during this time, many employees have reconsidered when, where and how they want to work.

With professional services firms now making preparations to reopen workplaces, questions are being asked as to how firms will operate moving forward, and how HR teams should respond to flexible working requests once restrictions are relaxed.

To answer these questions, Ambition recently ran an insightful webinar with employment law specialists Lewis Silkin to gain clarity on this topic.

What rights do employees have to request flexible working?

You will already be aware that employees with 26 or more weeks’ service currently have the right to request flexible working.

However, although the statutory right to request flexible working only applies once an employee hits 26 weeks service, it is important to note that, if you refuse a request from an employee in circumstances where they have a protected characteristic, for example they need flexible working because of a religious requirement, then refusing it unreasonably could amount to discrimination, and a discrimination claim can arise before that 26 week period.

Aside from that, there are statutory grounds for refusing flexible working, such as; additional costs to the business, the inability to reorganise work, the impact on quality or performance of a job.

Employers will need to give good grounds for any refusals, showing that you have given good consideration to the request.

Flexible working in the context of the ‘new normal’

Some businesses may find that remote working was successful when everyone was working from home, but this could cause issues once offices reopen.

Potential problems could include:

·       The need to schedule virtual meetings, alongside physical meetings

·       The logistics of managing office space,

·       The problem of having a few employees in the office taking on the burden of mundane, physical tasks.

These issues may, therefore, be easier to manage if employees have split their time between home and the office, as opposed to a permanent home working model.

Flexible working requests – best practice

When it comes to flexible working requests, it is crucial that firms have a clear, centralised process for dealing with requests.

Allowing individual managers to make their own decisions is likely to result in a certain degree of inconsistency.

An employer should always consider flexible working requests in the order they are received, and approach them positively. If approval cannot be granted, they should explore alternatives or compromises that might work instead.

Many employers will have accepted temporary working requests during the pandemic that might not previously have been allowed, for example, working while looking after children, etc.

Permanent changes should not be agreed unless they are considered to be sustainable.

Trial periods

Trial periods have never formed part of the flexible working legislation, but it's still important for employers to agree a change on that basis.

Although working from home during the pandemic might itself be regarded as a kind of ‘trial period’, a more formal arrangement would still be acceptable, especially if the employer wanted to see the impact on the business after most employees have returned to the workplace.

If an employer wishes to implement a trial period, it needs to be specifically on the basis that the arrangement is a temporary one and not a permanent change.

It's important to be clear on the length of the trial period, when it will be reviewed and how success or failure will be determined.

In some cases, the use of a trial period can help the employer show that they were willing to consider the change and provide evidence as to why the arrangement would not work in the longer term.

You should also remember that flexible working covers the place someone works, the hours that they work and the times they work. So even with general flexibility built in, you may get a request to work, for example, compressed hours or fewer days.

Working from home abroad

Regarding working from home abroad, this article has some useful information on the topic. It Is important to take advice on a case by case basis, as there are a number of potentially significant issues here.

Frequently asked questions about flexible working:

Can we postpone or extend a trial period until after the lockdown, so that we can make proper fair assessment of how that trial is working out?

If the employer and employee have agreed a particular trial period, a fresh agreement will be needed to vary it.

In this case, the employer should consult with the employee – an extension is likely to be beneficial to the employee as it would mean the flexible working arrangements be in place for longer, and they have a further opportunity to show they can work.

At what point does it become reasonable for us to say, we have too many employees working from home?

There is no fixed point at which an employer can say it is unable to accommodate any further requests.

Each request will need to be considered on its merits and in the context of the circumstances at that time.

Should Managers be proactively asking their teams if they intend to make a flexible working request (so that we can consider them in the round), rather than someone having an unfair advantage by getting in first?

There is clear guidance from ACAS that requests should be considered in the order they are received, and it is not unfair to do so.

This is likely to be helpful to employers – a downside of inviting all requests by a particular date and trying to consider them in the round is that the employer may only be able to agree some requests and not others, and may not be able to identify a clear and non-discriminatory reason to choose which requests to accept and which to turn down.

Won’t our company culture/employee wellbeing/team working be impacted by home working? Can we take these issues into account in relation to requests to work full-time from home?

These are not statutory permissible reasons for refusing a request, but they may have impact on some of the statutory reasons, and potential justification in the case of indirect discrimination.

An employer considering these issues in the context of remote working requests should assess the likely impact in practice and the impact on quality and performance which are statutory reasons for refusing a request.

If we were to introduce a new hybrid sort of home/office working model for the whole organisation, would everybody need to submit a flexible working request?

Not necessarily. If the employer wishes to change the contractual place of work or required office hours, it will need to consult with employees and any contract amendment would require consent.

If an employee wanted to have different arrangements from the contractual provisions applying generally, then they would need to make a flexible working request.

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Thank you to Lucy Lewis, David Lyons and Lisa Dafydd from Lewis Silkin for the information provided in this article.

If you are interested in watching a recording of the full webinar, where we also cover the topics of vaccines, testing and employees who refuse to return to the office, please contact us.

Useful links

Lewis Silkin - Reopening offices – what do the new regulations say?

Lewis Silkin - Going back to the office the latest guidance

Lewis Silkin - Coronavirus FAQs on staffing decisions when reopening workplaces

Lewis Silkin - Workplace testing FAQs for employers

Lewis Silkin - Staffing decisions when reopening workplaces - a flowchart

Lewis Silkin - Coronavirus FAQs for employers on working from home

Lewis Silkin - Home and away when working from home means working abroad