Becoming a flexible friend

You know you’re likely to have to deal with an increased number of flexible working requests from staff and colleagues as more return to the workplace. Tina Chande, a partner and head of the employment team at law firm Wright Hassal, provides some pointers on dealing with them.

1. Be prepared

Employers may find it difficult to demonstrate that granting requests for flexible working will negatively impact the future performance of their business if it operated effectively throughout the enforced lockdown, so be prepared.

Those who worked from home throughout the pandemic have experienced the potential benefits it can bring. Requests from employees who were placed on furlough or flexible furlough under the Coronavirus Job Retention Scheme may have also developed an eagerness to remain at home upon their return to work, especially if this fits around routines, such as child care arrangements, more easily.

In the post-lockdown working world, many employees will be keen for their employers to adopt a long-term culture of flexible working, which they will inevitably argue has now been proved to be effective with minimal impact on business productivity in many situations due to remote working being viably sustained for so long.

2. Who is eligible to make a request?

The first consideration for an employer is whether the employee is eligible to make a formal flexible working request. Where the request is made by an employee, who has at least 26 weeks of continuous employment at the date of making the request, the employee will be entitled to make a formal request and this must be handled accordingly.

An employee can only make one formal flexible working request in any 12-month period, so employers should check their records to ensure no such request has been made within this timeframe.

3. How a request should be made

Any request for flexible working must be made in writing so there is a written record of it - an email being just as acceptable as a written letter. Whilst many employees may look to discuss the matter more informally with their line manager in the first instance, which is of course understandable and perfectly acceptable, they should be reminded of the need to place their request in writing too so that it may properly be considered as a formal flexible working request.

The flexible working request should, for clarity, state that it is a flexible working request and that the employee meets the eligibility criteria, explain the reasons for the request and provide any other information in relation to the desired working pattern that the employee believes would be relevant and helpful in aiding the employer making their decision - the more information given, the easier the process will be in determining the practicality of the request.

4.  Reasons for making a request 

Flexible working requests can be wide ranging, but will usually cite one or more of the following as the reason for the request:

• A change of their work location (e.g. work from home for some or all of their contracted hours)
• A reduction or variation of the days the employee works (e.g. compress their contracted weekly working hours into fewer days)
• A reduction or variation of working hours (e.g. potentially reducing a current full-time role to a part-time one or flexible start and finish times for their working day)

The dilemma for many businesses will be balancing the potential benefits of the requests against the negative, particularly if the employee is in a leadership role and their input is needed to oversee operations and manage more junior level roles or if an employee’s role generally requires considerable collaboration with colleagues.

5. How to handle a request appropriately

Having received a request, the employer must deliver an answer within three months, allowing time for the individual to submit an appeal if the decision goes against them. This time can be extended by mutual agreement, when considerations are more complicated.

There may be occasions where the request can be approved easily and without the need for further discussion. However, this is highly dependent on the request made and the usual course of practice is likely to be to arrange a meeting with the employee to discuss their request further.

Employers should notify employees of the outcome of their flexible working request within a reasonable timeframe. If the request is accepted (including if it is accepted in part with slightly alternative arrangements proposed), the employee should be informed in writing with confirmation or the details and any trial period. This will be a formal permanent change to their terms and conditions of employment (unless agreed otherwise), and should be treated as such.

6. Reasons to refuse a request 

There will inevitably be circumstances where employers cannot accommodate a flexible working request - an outcome that may become more necessary if numerous requests are being received. However, employers must remember that they can only refuse a flexible working request for one or more of the reasons detailed in the legislation:

• Additional costs associated with change will impact the business
• The changes will make it more difficult to meet expected customer demand
• The inability to redistribute work among colleagues
• The inability to hire new staff to fill gaps left
• Service quality will be negatively impacted by changes
• Performance of the business will be reduced by any change
• Lower demand at the times the employee wants to work
• The business is already planning changes to the workforce.

Again, this decision should be communicated in writing, with an explanation as to the reason/s for refusal of the request and the option for the employee to appeal the decision.

7. Key considerations

It is vital that proper consideration is taken before any decision is reached, and therefore the meeting should be conducted without employers indicating the outcome at the meeting. It will usually take time to consider what impact long-term flexible working may have on the entire workforce.

When assessing requests for flexible working, employers must also be mindful of whether any of the employees are protected under the Equality Act 2010 before deciding whether to accept or refuse their requests. Refusing a request from employees afforded such protection could result in claims of discrimination, which can be very costly for employers.

When refusing a request, it is critical the employer explains the reasons carefully, to help the employee understand how the changes would impact the business. This is time well spent and should minimise the risk of claims being brought against employers as a result of their refusal.
 

8. Keep an open mind

Most flexible working requests come from individuals seeking a better work-life balance, with even furloughed workers recognising the cost-savings they made whilst at home. Pre-pandemic, employees granted flexible working requests were reportedly happier and more productive, which is of course a good outcome for employers.

Understandably, the sheer number of anticipated flexible working requests could cause a problem for employers. However, if it is possible to compromise and allow some flexibility, then this would offer a morale boost to employees, whilst also delivering benefits to the business.