19th July 2021 saw the United Kingdom open back up in what was dubbed “Freedom Day” following careful navigation of the Government’s roadmap out of lockdown.
Resultantly, employers could see a marked increase in formal flexible working requests going forward, especially now that some of the lockdown restrictions have been lifted and employees who are unable to work from home are being actively encouraged to return to their usual place of work.
The legal position behind an employee making a flexible working request
Employees with 26 weeks’ continuous service have a statutory right to make one formal application for flexible working each year and do not require a specific reason to make such a request.
Typically, employees flexible requests include:
- changes to the number of hours they are required to work;
- the times they are required to be at their usual place of work (i.e. apply to work days or parts of the day from home).
The application must be in writing, dated, and must:
- state that the application is being made under their statutory right to request flexible working;
- specify the proposed flexible working arrangement and the date on which the employee would like it to commence;
- explain what effect, if any, the employee thinks the proposed change would have on the employer and how, in their opinion, it can be dealt with; and
- confirm whether a previous application has been made to that employer and, if so, when.
Employers must deal with a flexible working request in a ‘reasonable manner’ * and give reasonable consideration to the requested flexible working practices. Requests should generally be dealt with within three months. Employers are only permitted to reject a request on specified business grounds, namely:
- burden of additional costs;
- inability to reorganise work among existing staff;
- inability to recruit additional staff;
- detrimental impact on quality;
- detrimental impact on performance;
- detrimental effect on ability to meet customer demand;
- insufficiency of work during the periods the employee proposes to work; or
- planned structural changes.
In addition to this statutory right to request flexible working, employees and workers may make ‘informal’ requests to work flexibly (for example, by agreeing temporary flexible working arrangements directly with their line manager), or request reasonable adjustments to their working conditions to remove disadvantages they suffer because of a disability.
*If you are faced with a flexible working request you should deal with such a request in a ‘reasonable manner’. The following ACAS guidance provides a helpful overview of the process for employers to consider: https://www.acas.org.uk/acas-code-of-practice-on-flexible-working-requests/html
Reasons why employers may see an increase in flexible working requests after lockdown ends?
While some employers already fully embrace agile working, the only ‘flexible’ option to date has been the traditional part-time working model.
The current government guidance that those who can work from home must do so has forced previously reluctant employers to facilitate homeworking as they have been left with no viable alternative other than to Furlough their staff.
Employers have had to adapt to new methods of working such as using Microsoft Teams, Zoom, Skype or similar. They have had to invest in remote working technology such as laptops and mobile phones for staff. Employers have had to deal with a new remote working culture whereby employees are given greater autonomy and flexibility.
Resultantly many employees will have seen immediate benefits from not having to commute to work and be present at their usual place of work typically 9am-5pm Monday through Friday and therefore may think carefully about making a statutory flexible working request when the lockdown restrictions are eased further.
Will the lockdown period now make it much harder for employers to reject flexible working requests after lockdown is lifted?
Employers can only reject a flexible working request on specified business grounds as set out above. Many businesses are likely to find it increasingly difficult to rely on such business grounds to justify refusing a flexible working request.
Employees will rightly question now that the technology is in place why they cannot continue to work from home as the additional burdensome costs of investing in homeworking equipment have already been incurred.
Further employers will face an uphill struggle to successfully argue that working from home with have a detrimental impact on quality or performance of work undertaken.
Insight
We have seen many of our clients where they still require employees to attend the workplace move towards operating a system of core office hours typically 10 – 3/4pm to allow workers typically to meet childcare commitments such as school / nursery drop offs and pickups. The employee then makes up the additional hours of the working day after the children have gone to bed in such an example.
Our view is that employees will increasingly want the ability to adopt agile, hybrid or flexible working. Not all employees want to work from home all the time as the current lockdown will have reinforced to many employees. We contend that many employees will want to manage a work-life balance better going forward especially where childcare is concerned. In the immediate future employees may be reluctant to have to use congested public transport and will likely make informal requests to navigate commuting at peak times.
Disclaimer
- Please note – this guidance is not intended to be taken as legal advice – for individual situations you will need to take specific legal advice.
- The information in this guide is correct as of 21st July 2021.
- All information provided should be read alongside the relevant Government Guidance at https://www.gov.uk/flexible-working and ACAS guidance https://www.acas.org.uk/acas-code-of-practice-on-flexible-working-requests/html
We hope you have found this note useful and if you do have any queries please get in touch.
Marie Walsh
Director, Employment Solicitor and Mediator
Direct Dial 0113 8874670
Mobile 07736252681
Reception: 0113 3229222
Address: 4 Park Place, Leeds LS1 2RU
Victoria Horner
Senior Associate
Direct Dial: 01138874673
Andy Boyde
Employment Solicitor
Direct Dial: 0113 323 0346
Mobile: 07595 520 508
Laura Huntington
Senior Paralegal
Direct Dial: 07541 690175