Many people enjoyed the flexibility that came with working from home during the pandemic, which may mean that they don’t want to return to the office full time. In a recent YouGov poll of 4,500 adults found that 81% of respondents expected to work from home at least one day a week post-lockdown. 33% expect to work from home at least three days a week. In this post, we look at how to respond to flexible working requests.
Employee rights
Employees have the right to submit a flexible working request if they have been employed with the business for at least 26 days. This also applies if legally classed as an employee. They can also ask for flexible working if they haven’t made a request within the last 12 months.
What procedure does an employer need to follow?
Ultimately, there is no set procedure for employers to follow when dealing with statutory requests for flexible working. They must deal with such requests in a reasonable manner. The employer must notify the employee of its decision within three months of the request, or a longer period if agreed with the employee.
The Acas code of practice on handling in a reasonable manner requests to work flexibly sets out guidance for employers. The code will be taken into account by employment tribunals in relevant cases.
The code recommends that the employer should:
-arrange a meeting with the employee to discuss the application as soon as possible after receiving it , allowing them to be accompanied by a work colleague;
-consider the request carefully looking at the benefits of the requested changes in working conditions for the employee and [the] business and weighing these against any adverse business impact of implementing the changes”;
-inform the employee of its decision in writing as soon as possible;
-discuss with the employee how and when the changes might best be implemented (if the employee’s request is granted, or granted with modifications); and
-allow the employee to appeal the decision if the request is rejected (a request can be rejected only on certain specified grounds).
It’s not acceptable to reject a request because you think it might encourage others to make a flexible working request. Every request should be looked at on its merits. Special consideration needs to take place, particularly if the employee fits one of the protected characteristics of the Equality Act.
What are the options for employers?
An employer has three options:
Accept the request. The employee’s new working pattern will be a contractual variation to their employment and will be permanent. The employer is obliged to issue a section 4 statement within one month of the change taking effect. Preparing a letter recording this change, or new contract entirely, is good practice.
Accept the request but offer a trial period. Employers may choose to offer a trial period or offer frequent review periods.
Refuse a request. To legitimately refuse a request, an employer must do so for at least one of the eight reasons set out in the legislation.
1) the burden of additional costs;
2) the detrimental effect on the ability to meet customer demand;
3) the inability to recognise work among existing staff;
4) the inability to recruit additional staff;
5) the detrimental impact on quality;
6) the detrimental impact on performance;
7) the insufficiency of work during the periods the employee proposes to work;
8) planned structural changes.
We expect that in a post pandemic world, employers will be more willing to consider flexible working as a viable option and may even begin to encourage it because of the many benefits it can bring to employees and employers alike.
We hope you found this post on How to Respond to Flexible Working Requests useful. Should you have any questions about dealing with flexible working requests, please do not hesitate to contact a member of our expert team here.
