As the latest lockdown comes to an end, employees who have grown used to working from home may have mixed feelings about returning to the workplace, especially if it means a long commute to and from the office. With this in mind, businesses have already received an influx of flexible working requests, which will have to be handled appropriately in accordance with the legal requirements.
Only employees with at least 26 weeks of continuous employment can put forward flexible working requests, meaning consultants and contractors would not be eligible. Therefore, employers must carefully consider requests, taking the time to understand the individual reasons and what impact it would have on productivity.
During these meetings, employees should be allowed to have another colleague accompanying them and should have the details of an appeals process explained to them, so they know what to do if they are unhappy with the outcome.
What to expect and important considerations
The request must be in writing and an employee can only make one in any 12-month period. Typically the individual will be seeking one of the following:
- Change their place of work – e.g. work from home for some or all of their hours
- Squeeze their total working hours into fewer days
- Reduce their full-time role to part-time
- Flexible working day start and end times
Once a request has been received, it is up to the employer to deliver an answer within three months, including any time needed to submit an appeal. This time can be extended by mutual agreement, which may be beneficial for both parties in certain situations.
After the meeting, it is important to weigh up the pros and cons of accepting the request, leaving no stone unturned in terms of what impact long-term flexible working would have on colleagues.
Most flexible working requests come from individuals that are looking for a better work-life balance. It is no surprise that colleagues granted this are generally happier and more productive, so it could be an option worth considering for employers, if disruption is avoided.
However, also consider any negative aspects particularly if the employee is a team leader and their input is needed to oversee operations.
Reasons to refuse a request
Having carefully considered the request, you can only refuse a request for flexible working for one or more of the reasons set out in the legislation:
- Additional costs will impact the business
- It will make it hard to meet customer demand
- The inability to reorganise work among colleagues
- The inability to recruit new staff
- The change will reduce service quality
- The change will reduce performance
- Lower demand when the employee wants to work
- Planned changes to the workforce
When assessing requests for flexible working, you must also be mindful of whether any of the employees are protected under the Equality Act, before deciding whether to accept or refuse their requests.
For example, working from home may be a reasonable adjustment for a disabled employee. However, refusing a request from a male employee may be classed as direct sex discrimination, if the individual was asking for flexible working to accommodate childcare responsibilities, which would have been granted to a female employee.
There is also the risk of indirect religion or belief discrimination, where the employee is asking for flexible working times to accommodate religious requirements.
Working through lockdown might be a problem
In the post-lockdown working world, many employees will be keen to implement a long-term culture of remote working, encouraged by the lack of impact on business productivity from their enforced remote working throughout lockdown.
Therefore, employers may find it difficult to demonstrate that there will be a detrimental impact on the quality of performance of work, when the business continued to operate effectively during the lockdown.
That being said, splitting teams up long term may not be a viable option for businesses, especially if some workers have expressed an interest to return to the workplace, which could create issues in terms of utilising work space.
Before agreeing to any requests, it is important to consider the impact of having some workers at home and some in the workplace, as this could create a disconnect between colleagues and impact the productivity of the entire group.
If you accept a request, then the employee’s new work pattern becomes a variation to their employment contract and requires you to issue a ‘section 4 statement’ detailing the changes, within one month of the changes coming into effect.
As the workforce leaves lockdown with a very different approach to life and work than when it went in, employers must prepare for the inevitable requests for flexible working.
If you have any questions about the issue, speak to Alec Colson, Head of Employment Law at Taylor Walton on 01582 390470 or email alec.colson@taylorwalton.co.uk
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