The pandemic has probably changed how we work forever. For most organisations, it’s difficult to envisage a world where everyone is back at their desks, in the office, working together.
Moving forward, many employers may opt to continue to integrate working from home into their organisations, whether that’s termed “hybrid working”, “remote working”, “agile working” or something else entirely! You can find out discussion on the possibilities for what the future of work will look like here.
Inevitably, there will be situations where employees will not immediately get what they personally want from their working arrangements.
In these circumstances, there is an official way that employees can seek to effect change in their working practices: a statutory flexible working request.
What are the current eligibility requirements?
26 weeks’ continuous service
An employee must have at least 26 weeks’ continuous service to make a request.
The CIPD have previously been vocal about campaigning to make the right to make flexible working requests a day-one right. That change is included as part of the recent Government response to its consultation on flexible working. You can read more about the forthcoming changes. With the scope of employees caught by the statutory regime increasing, the onus on employers to ensure that they are adequately prepared for dealing with requests will only increase.
Only one request per year allowed
If an individual has already exercised their right in the last 12 months, the statutory regime does not technically allow their later request (though note, employees will be allowed to make two under the new proposed regime). However, bear in mind that simply not engaging with employees because of this or another technicality may not necessarily be the most productive way forward and could lead to a breakdown in relations with the employee in question.
What types of request could be made?
An eligible employee can ask for their terms and conditions to be changed in any way they wish.
The request could therefore include a variety of practical solutions such as working from home, job sharing, part-time work, altered working hours, term time working and so on.
The intention of a flexible working request is to make a permanent change to an employee’s contract. You can agree a temporary change to cater for a short-term need but should ensure that the terms of such an agreement are recorded to reduce any confusion about what has actually been agreed.
What form should a request take?
A valid request under the current regime must meet a set of criteria, which are that it:
- is in writing;
- is dated;
- states that it is a statutory request for flexible working;
- states whether the individual has previously made such an application to the employer and when;
- states the change applied for and when the individual wants the change to take effect; and
- explains the effect, if any, the individual thinks that making the change would have on the employer and how they think that might be dealt with.
Again, if a request does not meet all of these requirements, it is probably not worth refusing to deal with it on those grounds, but we would always advise insisting on a written request at least, to avoid the possibility for any confusion.
It is recommended by ACAS that employees should also state whether their request relates to the Equality Act 2010, for example that the change requested could also relate to a reasonable adjustment. It is likely that many employees will not know this, and so employers need to be careful and keep this possibility in mind. Always seek advice if unsure.
How to respond to a flexible working request
Employers must be reasonable, and make decisions based on objectively justifiable, business-related reasons. They should avoid knee-jerk, subjective, and emotional responses, regardless of the surrounding circumstances.
As soon as practicable after the request is submitted, the employer should arrange to meet with the employee to discuss the request. The key is to approach the request with an open mind, even if there is reluctance to accept the request. Otherwise, the employer may leave themselves open to arguments around an unfair process, which could in turn increase the risk of a constructive dismissal or discrimination claim.
On what grounds can a flexible working request be rejected?
Officially there are eight grounds on which an employer can reject a request. The employer only needs to establish one of these reasons:
- The burden of additional cost;
- A detrimental effect on the ability to meet customer demand;
- An inability to re-organise work among staff;
- An inability to recruit more staff;
- A detrimental impact on quality, i.e., there are no other employees who could step up to learn a particular skill;
- A detrimental impact on the performance of the employee or their team or the business as a whole;
- There will be insufficient work during the times the employee proposes to work, e.g., a high street shop open 9-5 will not be able to accept a request for the employee to work during the night; and
- Planned structural changes, i.e., that the flexible working arrangement would conflict with a planned business re-organisation.
The only claim a disgruntled employee can bring specifically under the flexible working regime is on the basis of procedural failings.
If successful, an employment tribunal can order an employer to reconsider the request and/or award up to eight weeks’ pay (subject to the statutory cap on a week’s pay). If a decision is made with due consideration and genuinely based one of the above reasons, there is therefore little an employee can do to challenge this.
However, do bear in mind that even if a request has technically been considered in line with the statutory procedure, an employer could still potentially face claims under the discrimination legislation or for constructive dismissal.
If rejecting the request, care should be taken over the wording of that rejection: ambiguity or poor phrasing could increase the risk of a claim. Whether rejecting or accepting a request, the employer must:
- Confirm the decision in writing;
- Do this without delay; and
- Provide the decision within three months from the date on which it receives the employee’s request (unless an extended period is mutually agreed, and note that this three-month period will decrease to two under the new proposals).
Can there be a trial period?
If you are reluctant to accept the employee’s request in full, a sensible option could be to factor into the decision a provision for a trial period. This will act as a reasonable compromise through which you and the employee can assess whether the arrangement can work in practice.
For example, if you are concerned that accepting the request may have a detrimental effect on your ability to meet customer demand, the trial period could go a long way to easing – or proving! – your concerns about this. Make sure you make the terms of the trial period completely clear when giving your decision and ensure there are definitive parameters in place.
Do we need to allow an appeal?
Employers do not need to allow an appeal, although we would recommend it is good practice to do so. If an appeal is allowed, it should be with a different individual who is more senior to the individual who considered the request originally.
What form does the final agreement need to take?
If an agreement is reached, the terms of the changes much be recorded in writing and signed as a formal variation to the employee’s terms and conditions of employment.
What steps should you be taking now?
The consultation on changes to flexible working was silent on any timescale for it coming into force so we anticipate that it will be a little while before the full new proposals take effect. We would recommend that employers should ideally have a flexible working policy in place to ensure that the correct process is followed when requests are made. If you already have a policy in place, make sure that it has been reviewed recently so that it reflects the current legal position and any arrangements specific to your organisation.
If you require any advice on preparing your business for flexible working requests, on how to deal with specific requests made, or on any potential disputes, please get in touch.