With the success of the Covid vaccination programme, there is hope on the horizon that life may soon be back to some form of normality. From 17th May 2021 further restrictions were lifted, however the Government are still advising that if an employee can work from home, they should. The Government will adress the next step on the roadmap in June, with hope of removing all legal limits on social contact from 21st June 2021, this would include the removal of the advice to work from home if you can. We review the issues surrounding a flexible working request and provide practical HR guidance for employers.
Through the pandemic the number of employees working from home saw a sharp increase, with the Office of National Statistics suggesting that employees working from home had increased to 49%, compared to 14% in 2019. Some employees will be keen to get back to working in an office, however there will also be some who prefer to work from home and they may wish to continue this in the future. Therefore, employers should brace themselves for flexible working requests from employees wishing to change their place of work to home. It is important that employers consider any requests for permanent home working so as not to lose the benefits of an engaged workforce.
Making, and dealing with, a flexible working request – the law
Any employee with at least 26 weeks continuous service can submit a flexible working request for any reason and the employees are not required to give a reason for the request. However, an employee can only make 1 formal request per 12 months. To make a request for flexible working, the employee should 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.
- What effect they consider the request will have on your organisation and how this could be accommodated.
- Whether they are making the request under the Equality Act 2010 e.g. a “reasonable adjustment” for a disability.
On receiving a request, the employer should arrange a meeting to discuss it with the employee as soon as possible. If there is likely to be a delay the employer should inform the employee. The whole process including the appeal should be dealt with within 3 months of receiving the request. This time period can be extended if the employee agrees.
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. If the employee agrees, the discussion can be over the phone or some other way. 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 is 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
The employer can only refuse a request for one (or more) of the eight legal rejection grounds set out in legislation, which are:
- 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.
Article written by David Scott – Wirehouse Employment Law Consultant