Employment law and the right to request flexible working

The 12- 16 October is National Work Life Week providing the opportunity for employers and employees to focus on wellbeing at work and work life balance. This year, flexible working has come to the top of the agenda for many businesses. Given the long-term impact of Covid-19 across society, it appears that flexible working is here to stay:

• In April 2020, 46.6% people in employment did some work at home
• Of those who did some work from home, 86% did so as a direct result of the coronavirus pandemic
• Of those who did some work from home, 34.4% worked fewer hours and 30.3% worked more hours than usual

The right to request flexible working

According to the current employment law position, everyone has the right to request flexible working, not just parents or carers.

Making a statutory application to an employer for flexible working

There are certain criteria regarding an employee’s eligibility to request flexible working:

• The employee must have worked for their employer for at least 26 weeks
• The employee can only make one application for flexible working a year

The impact of COVID-19 on flexible working

Earlier this year thanks to the national lockdown, many organisations had to adapt overnight to ‘remote working’ which is one type of flexible working.

Flexible working types – how flexible?

In fact, flexible working can take many forms including:

• Reduce of hours to work part-time
• Change to start and/or finish time
• Compressed hours (hours over fewer days)
• Remote working (working from home)
• Changes to apply for all working days or specific days or shifts only
• Changes to apply for specific week(s) only (e.g. school term time)
• Changes to apply for a limited time only (e.g. six months)

Benefits of flexible working

As has been demonstrated by many businesses as a response to the government coronavirus restrictions, there are benefits to be taken by both employers and employees from adapting a more flexible approach over and above following this route purely to help in stopping the spread of Covid:

General benefits of flexible working for employers:

• Employee retention
• Productivity – less stressed, less over-worked employees
• Attracting potential new recruits from a more diverse population
• Cost savings – improving the efficiency of the office and helping bring down overhead costs

General benefits of flexible working for employees:

• Avoiding the commute – money saving and time saving with a positive environmental impact
• Spending more time with family – gaining a better work/life balance

There are some negative impacts which should also be considered:

Drawbacks of remote working:

• The need to invest in technology and inevitable technological failures
• Absence and reduction of office and employee interactions and communication which can impact culture
• Blurring the work / life balance
• Employers must be fair with the management of requests across their workforce

How to make an application for flexible working

An application for flexible working would normally proceed as follows:

1. The employee writes to their employer to request flexible working
2. The employer considers the request, and makes a decision within three months (unless agreed otherwise with the employee)
3. If the employer agrees to the request, the relevant changes should be made to the terms and conditions in the employee’s contract
4. If the employer disagrees to the request, they must give business reasons for the refusal. If the employee wants to take it further, they can complain to the Employment Tribunal.

The employer’s responsibility where a flexible working request is made by an employee

Employers must:

• Deal with flexible working requests in a ‘reasonable manner’
• Assess the advantages and disadvantages of the application
• Hold a meeting to discuss the request with the employee
• Offer an appeal process

Business reasons for the refusal of a request for flexible working

The guidance on flexible working employment law provided by ACAS offers a few examples of reasonable business reasons which employers can give for refusing a request for flexible working. These include:

• Planned structural changes to the organisation/ department
• The burden of additional costs
• Quality/ standards suffering, and customer/ client complaints
• The potential for performance to suffer
• The organisation/ department struggling to meet customer demand

Bengi Karakus is a Trainee Solicitor at Hatch Brenner Solicitors on Theatre Street in Norwich. If you would like to discuss flexible working – either as an employee or employer, please contact our Employment Law Team at 01603 660 811 or via [email protected]