The Government says its proposal to give the right to request flexible working to every employee from day one of a job will benefit millions here in the UK, with businesses benefitting from happier, more productive staff - but for managers, the new measure presents a whole new challenge.
To get some clarity on what it means for businesses, how they should manage those requests and the conversations around them, to achieve positive outcomes, SoGlos turned to legal expert Trula Brunson of employment lawyers Sherbornes Solicitors.
About the expert – Trula Brunsdon, director at Sherbornes Solicitors
Trula Brunsdon, a director at the Sherbornes Solicitors, specialises in employment law and has over 18 years' legal experience bringing and defending a wide range of claims, including unfair and constructive dismissal; discrimination; and breach of contract.
Originally employment law specialists, working for employers and employees, Sherbornes Solicitors in Cheltenham now has expertise and a proven track record in business law, growing rapidly thanks to the success of its approach to the law.
What is flexible working and who can request it?
Flexible working is essentially any way of working which isn’t your typical 9am to 5pm in the office. It might be varying the hours worked, whether shortening or compressing them, or working them at different times such as earlier in the morning and/or later in the day.
Flexible working incorporates remote and hybrid working, so working from home or at a location other than the office. Employees are protected when they make a request to work flexibly.
Are flexible working requests on the rise? And why might someone make such a request?
The number has increased noticeably. Sherbornes Solicitors continues to receive enquiries from a large number of employers about how to deal with flexible working requests. The number of enquiries rose during the pandemic when employees requested to continue to work from home or move to hybrid working when lockdowns ended.
Changes to working patterns as a result of the pandemic and a push from some employers towards returning to work in the office is still the reason for some requests, but there can be many other reasons that requests are made. For example, wanting to change working pattern on return from maternity leave, accommodating caring responsibilities or simply wanting a better work/life balance.
How should employers deal with a request?
Unless a request is being agreed, the employer should meet with the employee to discuss their request. Even if there are clear reasons why a request can be granted, it is still worth exploring whether there are any other solutions which will work for both parties.
Employers can sometimes give a knee jerk response. Assuming a request won’t work, or refusing because what is being requested hasn’t been done before, isn’t enough to justify a refusal. Think about why you believe a pattern or request won’t work, for example, if it will hinder effective communication that would have a detrimental effect on the quality of work.
What reasons justify refusing a request?
It’s worth remembering that the right is to request flexible working, not to work flexibly. Requests can be refused, but only if one or more of the following legally permissible reasons apply:
• The burden of additional costs
• An inability to reorganise work amongst existing staff
• An inability to recruit additional staff
• A detrimental impact on quality
• A detrimental impact on performance
• A detrimental effect on ability to meet customer demand
• Insufficient work for the periods the employee proposes to work
• A planned structural change to your business
What happens if employers agree to a request?
Unless agreed otherwise, granting a flexible working request is a permanent change to an employee’s terms of employment. If an employer is not sure whether a particular working pattern or location will work, it is sensible to consider agreeing to a trial.
If it works, the change can be made permanent. If it doesn’t work, it can be shown why not. In the absence of a trial period, the agreement is a permanent change of contract.
Have you come across cases where employers have got into problems as a result of how they have handled a request?
Certainly. We recently had a case where an employer relied on a company rule requiring employees to work a certain number of days in the office and argued that the rule was needed to avoid a detrimental impact on performance. However, the employee was able to show several examples where the rule hasn’t been consistently enforced.
The lesson here is to look at what’s been allowed previously, not only in the department the employee works but across the wider organisation.
However, just because something has been agreed before, it doesn’t mean that it must be agreed again. For example, if you have two bank tellers and one works from home, you could not agree to the other working from home or no one will be present at the bank till.
Will the law around flexible working change?
Currently employees can request flexible working after they have been employed for six months and can make one request in any 12-month period. The government has indicated that it plans to make changes so that employees can make a request on day one of employment and make two requests a year.
The government also intends to simplify the process for making a request, shorten the time for responding from three months to two months and make it mandatory for employers to discuss alternatives with employees if they are unable to agree to their request. It has been emphasised, though, that it will remain a right to request flexible working, it will not become a right to actually work flexibly.