Flexible Working Requests

posted by KeithDaniel

Over the past 6 months many employees across the UK have been working from home as a result of the Coronavirus pandemic. Despite homeworking being an initial shock to many, a large number of employees have expressed an interest in working from home on a permanent basis. A survey carried out by Eskenzi, a PR and Marketing Agency found that 9 out of 10 respondents would prefer to have at least one day a week working from home. 

There is no secret that there are a number of benefits to homeworking for employees. This may in turn have a positive impact for employers. Some examples include:

  • Increased productivity – employees working from home do not have to travel to and from work and encounter the stresses that this involves;
  • Better motivation – many employees respond well to homeworking; and
  • Skills retention – employees who might otherwise resign due to family responsibilities and commitments or temporary or permanent disabilities may remain with the company if offered the option of working from home.

The past 6 months have given a number of employees who would not have previously had the opportunity to work from home the opportunity to experience the benefits of homeworking for themselves. As employers attempt to bring employees back to the workplace over the coming months it is expected that many will see a rise in the number of flexible working requests.

It is therefore important that employers know how to deal with flexible working requests fairly and objectively in order to minimise the risk of potential discrimination and constructive dismissal claims.

This article considers some frequently asked questions regarding statutory flexible working requests. Please note that the information set out below may differ where contractual provisions concerning flexible working requests exist.

1 - Which employees are allowed to ask for flexible working?

In order to make a statutory flexible working request, an employee must have at least 26 week’s continuous service from the date the request is made. The employee must also have not made another statutory request in the previous 12 months.

2 - Do employees have to follow a particular procedure when making flexible working requests?

Yes, an employee must make a request in writing and set out:

  • the date of the request;
  • state whether they have previously made a flexible working application to the employer and, if so, when;
  • state that it is an application made under the statutory procedure;
  • specify the change applied for and the date on which it is proposed the change should become effective;
  • explain what effect, if any, they think making the change applied for would have on his/her employer and how, in his/her opinion, any such effect might be dealt with.

The Acas Guide on the right to request flexible working also suggests that the employee should state if they are making their request in relation to the Equality Act 2010, for example, as a reasonable adjustment for a disability.

3 - Does an employer have to follow a particular procedure when considering flexible working requests?

Yes, the Acas Code sets out a number of recommendations that employers should follow in dealing with flexible working requests:

  • Once an employer receives a flexible working request, they must consider it and deal with it in a reasonable manner. An employer should arrange a meeting to discuss the employee’s request as soon as possible, however if an employer wishes to accept an employee’s request then a meeting is not necessary.
  • Employees should be allowed to be accompanied by a work colleague at any meeting to discuss their request.
  • The meeting should take place in a suitable private location.
  • The employer should consider the benefits of an employee’s request against any adverse business impact of implementing the requested changes. Employers must be careful to ensure that they are not unlawfully discriminating against any employees when considering flexible working requests.
  • Once the employer has reached a decision, they should inform the employee of their decision in writing within three months from the date on which the employee made their request (or such longer period as the parties may agree).
  • If an agreement is reached to vary an employee’s working conditions, then the employer must provide a “section 4 statement”, which is a written statement of changes to the employee’s terms and conditions within one month of the changes taking effect.
  • An employer may wish to use a trial period to determine whether or not an employee’s flexible working request would work in practice. However, the length of a trial period should be no longer than necessary.

4 - Does an employer have to allow employees to work flexibly?

No, an employer does not have to allow employees to work flexibly, however all requests must be considered fairly and objectively. An employer can only refuse a flexible working request on one or more of the following eligibility grounds:

  • the burden of additional costs;
  • detrimental effect on ability to meet customer demand;
  • inability to reorganise work among existing staff;
  • inability to recruit additional staff;
  • detrimental impact on quality;
  • detrimental impact on performance;
  • insufficiency of work during the periods the employee proposes to work; and
  • planned structural changes.

Flexible working arrangements can benefit both employees and employers. It is advisable for employers to have in place their own flexible working policy so that both employees and employers are aware of how flexible working requests will be dealt with.

If you are an employer who needs some advice regarding a flexible working request or policy, or an employee in need of some advice, then please contact us on 029 2034 5511 or employment@berrysmith.com.