Sammi Mackie, Employment Solicitor in our Edinburgh office, explores flexible working requests.
1.Can an employee make a flexible working request?
The provisions of the Flexible Working Regulations 2014 permit anyone to make a flexible working request:
- Irrespective of their contracted hours of work.
- Who is an employee rather than a worker.
- Who has more than 26 weeks continuous service.
- Who has not made another request in the previous 12 months.
However: it's important to note the legislation does not create a legal right for the employee to work flexibly, but it does set out how a request can be made by the employee and what an employer must consider.
2. How can an employee make a flexible working request?
The legislation requires the process of considering a request to be concluded within a 3-month period from the date of the application. In this time, employers must hold any consultations required to obtain more information about the proposed arrangement, consider an outcome and hear any subsequent appeal.
An employee’s application must:
- Be dated and in writing.
- State that it is an application made under the statutory procedure.
- Specify the change that the employee is seeking and when they wish the change to take effect.
- Explain what effect, if any, the employee thinks the change would have on the employer and how any such effect could be dealt with
- The request must also state whether the employee has previously made an application to the employer and, if so, when. Alternatively, making an electronic request by email is usually permissible, especially given the current working from home arrangements caused by coronavirus.
3. What kind of change can be applied for?
The scope for change is wide. Examples of the common types of requests are:
- A change to the hours an employee may work. For example, employees working from home may wish to propose a request working longer hours, perhaps accounting for their travel time but over fewer working days.
- A change to the times when they are required to work which may become more popular across a wider range of sectors with a suggested staggered approach to working hours post lockdown.
- A change to the place of work such as between their home and any of the employer's workplaces or to be permanently based at a workplace closer to home.
Underlying these three categories of request, are a wide range of possible work patterns. The legislation itself includes possibilities of part-time working, flexi-time, shift working, job-sharing, and term-time working as examples. The loose boundaries of the legislation can be used while considering the merits of a request. Such a wide scope offers a range of counter proposals to balance any possible structural demands with the needs of the employee. if workable, it may help employers retain talent and keep a low turnover of staff if reasons for seeking alternative employment are borne out of rigid workplace arrangements.
4. Do employers need to accept flexible working requests?
There are only 8 specific grounds that an employer can legally rely upon to refuse a request which are still proportionately applied as we move through the phases of eased lockdown restrictions and towards the new flexible furlough scheme:
• The burden of additional costs;
• Detrimental effect on ability to meet customer demand;
• Inability to re-organise work among existing staff;
• Inability to recruit additional staff;
• Detrimental impact on quality;
• Detrimental impact on performance;
• Insufficiency of work during the periods the employee proposes to work;
• Planned structural changes effecting the organisation of the team.
From a legal perspective, while considering the grounds for refusing a request an employment tribunal cannot question the business reasons behind the decision. This severely restricts the scrutiny to which an employer's decision may be subjected. This may be welcome news for businesses who are experiencing an increase of structural and organisational adjustments in the current climate.
5. What are the risks associated with refusing a request?
An employer will at least need to show that one of the grounds applied, which may be more difficult to achieve if the employee’s role was carried out successfully from home for a significant period due to the coronavirus outbreak. The tribunal can order employers to reconsider the application and may award compensation not exceeding eight weeks' pay subject to a statutory cap.
An employee whose flexible working request has been rejected may also have grounds to raise a discrimination claim. For example:
A male employee whose flexible working application for childcare purposes has been turned down may argue that the employer would not have turned down a similar request from a female employee.
Compensation that may be payable from a discrimination claim is unlimited and the employment tribunal can delve much further into the business reasons for the employer’s decision to refuse a request. These two factors make a discrimination claim potentially much more significant than a claim for a failure to comply with the flexible working legislation. We would therefore encourage employers to take an informed approach and seek legal advice if there are discrimination concerns.
If an employee is particularly aggrieved by the rejection of their flexible working request, then they could resign and claim constructive dismissal. A failure to comply with the flexible working legislation and/or discrimination could give the employee grounds to succeed in a constructive dismissal claim. Therefore, if one of the refusal reasons are unreasonably relied upon, this could result in significant risk for the employer. Each request should be considered on their own merits and we would deter employers from taking a blanket approach: avoid refusing on the simple basis that “this is not how we do things here”.
6. Flexible working requests in a post-lockdown workplace
- Trial periods
Work culture and practices as we once knew them are likely to change in a post-coronavirus future. Implementing a trial period allows both employers and employees to investigate what flexible working adaptations may be suited to any new change in their business direction. Additionally, they can also help employers navigate through any requests that arise alongside the new flexible furlough scheme from July 2020. Where there has been agreement from both parties, the only lawful way to ‘reverse’ a flexible working request is to enter another consultation process and seek expressed agreement. For this reason, employers may feel slightly hesitant to commit themselves to a binding agreement when it cannot be foreseen if it will hinder their future direction. Using a trial period allow the proposal to be observed practically before committing to a permanent contractual change. It can help identify adjustments that may benefit the original request such as different combinations of non-working days or trialling start and finishing times.
- Dealing with multiple requests at one time
When business premises resume for a new normal way of working, employers may also find themselves considering many flexible working requests at the same time. It is important for employers to be mindful that they cannot make a judgement on which employee, in their eyes, has made the most deserving request. Instead each request must be assessed on its own merits, with the business objectives in mind. During a time where most sectors have been forced to work from home, many employees may seek to make this arrangement more permanent as we emerge out of lockdown. If an employer finds themselves juggling many flexible working requests, it would be advisable to consider the requests in the order they are received. If it is unlikely that all requests can be accommodated, it is important for employers to consider the business impact of granting prior flexible working requests granted when they are assessing any new requests. Depending on the size of a company, an employer might find it better from an employee relations perspective to consult with all the employees who have made requests within the same time period to see whether there can be a working compromise from everyone.
7. Can flexible working help business in the future?
Flexible working requests are likely to be on the rise and may benefit both employees and employers. With a likelihood of more employees requesting working from home on a permanent basis, there could be a review of what office spaces are needed to facilitate businesses and if uniform working patterns are truly required. More employees across various sectors may look to depart from the traditional Monday – Friday, 9-5pm working week, in favour of a more fluid approach to their employment obligations. There are already several corporate names across the UK considering a reduction of their city spaces after recognising they may not be needed. it is still yet to be seen whether any long-term financial implications of COVID-19 can be reduced by reaping the benefits of modern working practices. However, from an employee relations perspective, flexible arrangements may bring a breath of fresh air to workplace practice in the future.
Need some advice on managing flexible working requests? Sammi's interview on the topic for Law At Work Radio is available here. In addition, Employment Law At Work and HR At Work are here to support employers 24/7/365.