As employees start returning to the workplace (some, perhaps, more reluctantly than others), and new employees are contracted on more flexible terms than existing staff, employers could find themselves receiving more flexible working requests than usual over the coming months.
As not all jobs can be performed remotely, employers will need to carefully consider several factors before accepting or rejecting flexible working requests. Ultimately, however, if an employee’s contract states that their place of work is the employer’s premises, it is the employee’s contractual obligation to show up for work at that location. This is subject, of course, to an agreed flexible working request.
What is a Flexible Working Request?
Employees can request flexible working arrangements (only in respect of their start and finish times, changing their shift patterns, or their location of work) by way of statutory application and all employees have the legal right to make a request, as long as they:
- Have worked for the same employer for 26 weeks or more
- Are legally classed as an employee (i.e. they are not a worker or sub-contractor)
- They have not already made a flexible working request within the previous year
Flexible working requests need to comply with the Employment Rights Act 1996 and the relevant regulation. They should be made in writing, and it is best practice for an employer to ask employees to put their formal request in writing to avoid any confusion and ensure that the correct (statutory) process is followed. The written request must include:
- The date of the application
- The change to working conditions the employee is seeking and when they would like the change to come into effect
- What effect, if any, the employee considers think the requested change would have on the employer and how, in the employee’s opinion, any such effect might be practically addressed
- A statement that the request is a statutory request and details of if and when the employee has made a previous application for flexible working
Employer Obligations
Requests must be fairly considered. If there is a flexible working policy in place, then employers need to comply with this first and foremost (provided that the policy does not contradict the law).
The first step is to acknowledge the request and to request more details, if needed.
When considering a flexible working request, employers should think about:
- The impact of denying or allowing the request for the employee
- The impact of denying or allowing the request for the business
- Additional costs involved
- Logistics
- Any alternatives or compromises
It is critical that all flexible working requests are dealt with fairly and in the same way for all employees within the business. There should be no bias or unfair treatment between different departments or different groups.
A decision on a flexible working request (whether or not it is being accepted or rejected) must be made within 3 months, and an employee must be advised of the decision in writing.
It is best practice for an employer to arrange a meeting to discuss their decision or the pending changes (including the date of when the flexible working arrangement will start and any other arrangements that might be needed – for example, someone working from home may need additional IT equipment).
If a request is accepted, the employee’s contract should be varied or updated to reflect the changes (which may be made on a permanent or temporary basis).
If a request is declined it must be for one of the reasons prescribed in the legislation and the reasoning should be explained to an employee, in writing. The acceptable business reasons for declining a request, include:
- Burden of additional costs
- Detrimental impact on quality, performance, or meeting business demands
- Inability to reorganise workloads with existing staff
- Inability to recruit additional staff to cover the changes required by the request
- Structural changes to the business
It is possible for an employee to negotiate the terms of a flexible working arrangement with an employee if the original request needs to be declined for any of those reasons. An employer can also agree to the changes on a temporary, trial basis before formally accepting a request in order to establish the potential impacts of the employee’s request.
Employment Law Advice on Flexible Working
If you require guidance with dealing with flexible working requests, need to review your employment contacts and policies, or need assistance with a dispute or issue regarding flexible working, please get in touch for a confidential conversation.
Whether you require a fixed fee appointment, a bespoke training session, or assistance with drafting relevant documentation, our Employment Law Team can help you find a way forward.
Do not hesitate to call us on 01256 844888, email enquiries@lambbrooks.com or speak to our online Chat Assistant (who is a real person) who is available 24 hours a day.
Other articles you may be interested in reading:
Top Trends and Topics for HR in 2022
HR Hour: Why Good Employee Leave their Jobs
Mental Health Awareness: Employers Duties
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.
