As we move along the post-pandemic timeline, it is clear to employers that the landscape surrounding office working has changed. There is now an expectation amongst employees that requests for remote or hybrid working be accepted mainly due to the way in which so many businesses successfully implemented such arrangements with such little notice in March/April 2020.
With such a shift in the way businesses managed with remote working, MP’s sought to implement changes to the Employment Rights Act (1996) by introducing the Employment Relations (Flexible Working) Bill. This has now made its way through parliament and is currently in the process of gaining Royal Assent. Once implemented, it will change the way employers deal with flexible working requests, as well as amend the rights related to employees eligibility to make requests.
Changes to Making, and Dealing with, a Flexible Working Request – The Law.
In a change from what had been expected, employees will still require at least 26 weeks continuous service before they can submit a flexible working request for any reason. Employees are still not required to give a reason for their request. However, an employee will now be able to make 2 formal requests in any 12-month period.
To make a request for flexible working, the employee should still confirm their request in writing and send to their line manager.
The employee should indicate if they have made a previous request and if so, when. The request should be dated and should also include the following details:
- The change to working conditions and/or flexible working pattern they are seeking.
- When and why they would like the changes to take effect.
- If it’s only for a limited term, how long it would last.
- If they wish it to apply permanently or for an initial trial period.
- Whether they are making the request under the Equality Act 2010 e.g. a “reasonable adjustment” for a disability.
One change in previous legislation is that employees are no longer required to explain within their application what effect they believe their request would have on the business, nor are they required to provide any solutions to problems caused by their request.
On receiving a request, the employer should arrange a meeting to discuss it with the employee as soon as possible. Employers will no longer be permitted to refuse a request until they have consulted with the employee – however no “minimum standards” of consultation have been set and so it is likely a sit-down meeting with the employee will suffice.
One further change to the flexible working process is that requests now have to be dealt with within a two month period, lower than the previous three month period, unless an extension is agreed with the employee.
A face to face discussion with the employee should be arranged, unless the employer receives a request and is happy to accept it then no further discussion is needed if the employer does not wish to do so. The discussion provides an opportunity for the employer to explore with the employee, exactly what changes they are requesting and how they think these might be accommodated.
It remains good practice to allow a work colleague or Trade Union representative to attend the discussion with the employee. This should be made clear to the employee before the discussion and sufficient time should be allowed to organise representation.
After the meeting, an outcome would be given in writing, with the right of appeal if the request is being rejected.
Refusing a Request for Flexible Working
There are no changes (currently) to the reasons by which an employer can refuse a request. The employer can only refuse a request for one (or more) of the eight legal rejection grounds set out in legislation.
What Are the 8 Legal Rejection Grounds for Flexible Working Requests?
1. The burden of additional costs
2. Detrimental effect on ability to meet customer demand
3. Inability to reorganise work among existing staff
4. Inability to recruit additional staff
5. Detrimental impact on quality
6. Detrimental impact on performance
7. Insufficiency of work during the periods the employee proposes to work
8. Planned structural changes
When considering if a flexible working request can be accommodated, it may be useful for employers to look at the request in 2 stages. Firstly does the request cause an inability to meet customer demand and/or secondly does it have a detrimental impact on quality/ performance. If it doesn’t then the flexible working request should be accepted. However, if it does, the employer should next consider if there is a work around, such as re-organising work among existing staff or recruiting new staff. If after consideration an employer can identify a significant impact on meeting customer demand and/or on quality/performance and there is no workaround, such as can’t re-organise work or recruit addition staff, then it could be a reasonable outcome to reject a flexible working request.
Case Study Example
An example could be that a nursery practitioner currently works 8am to 6pm, and they put in a flexible working request to work from 8am to 5pm.
- After consideration, the employer may decide that the employee leaving 1 hour earlier than they currently do, would not cause too much of a detrimental impact on meeting customer demand or quality/performance.
- Or if there is an impact on meeting customer demand or quality/performance, this can be resolved by re-organising the work amongst existing staff. Either way the flexible working request can be accepted.
- However, if the main collection time for children from the nursery is between 5pm and 6pm and there is no spare capacity to cover the work to ensure the handover of children to their parent is efficient and safe, then the flexible working request could be rejected.
- This would be on the basis that there is a detrimental impact on meeting customer demand and quality/performance and this work cannot be re-organised among existing staff.
When it comes to flexible working requests many employers will find it increasingly difficult to reject a request to work from home on a permanent basis when they have already invested in remote working technology or to reject it due to a detrimental impact on quality, performance or ability to meet customer demand when they have been operating this way for potentially over a year.
Working from Home | The Effect on Your Business
Many employers may worry that working from home results in lower productivity, however some would argue it can actually increase productivity, as there are fewer interruptions which would normally occur in an office environment. Often working from home allows for a quieter environment that can facilitate more focused work.
Also, employees may work longer hours as they can also use their time saved from commuting. There are other potential benefits of employees working from home, these include increased staff motivation, improved staff health and wellbeing, and better work/life balance. These can all contribute to less time off work due to sickness and overall better staff retention. Being able to work from home, may also attract new talent and can help reduce cost, as employers could make savings on office space, office supplies, utility bills and other facilities.
There will always be roles that cannot be done remotely or an employer may see an increase in customer demand meaning staff need to be on site to deal with the demand (e.g. management roles). There could also be an argument that working from home was allowed to try and reduce the risk to staff, however this was never ideal and the role could not be done fully from home and it was a make do situation and cannot be sustained going forward.
Whatever the reasons, an employers will need to rely on the 8 legal rejection grounds above. If they decide working from home cannot be accommodated, they will need to be able to back up the decision and provide evidence to support the decision beyond simply quoting any one of the refusal grounds above.
Got a question about an employee flexible working request? Speak to our Employment Law team today for HR advice you can trust.