Back in July 2019, I wrote a piece encouraging flexible working.
Remember 2019? … we were allowed outside, our children were educated in buildings called ‘schools’, we could buy flour and planes flew overhead. Ah, sweet memories.
Well, what a difference a few months can make. The majority of office workers are now setting up temporary desks in their spare rooms, on dining tables or even ironing boards. We are working from home en masse. Yes, it is because of a nasty virus, but still – things have changed.
I don’t know about you but I feel that despite the heartbreaking difficulties we face, this crisis has been (and continues to be) a catalyst for creativity. As a result, the world we will join again in a few months will be rather different to the one we closed the door to a few weeks ago.
I’m not suggesting that we are all going to become homeworkers 5 days a week. But, I do think this crisis will open up opportunities that were once beyond grasp or consideration. Common sense would dictate that any employer that invests money into ’emergency’ laptops and last-minute VPNs will want long-term value rather than a short term rescue.
As I said in Flex in the City, there is a great business case to promote flexible working, including overhead savings, attracting and retaining talent and improved productivity. Exeter also has a growing problem with ‘rush-hour’ congestion in the City Centre that could be mitigated through flexible working. To help encourage Exeter’s business owners towards retaining their new-found flexibility beyond lock down, we have answered some of your ‘legal’ FAQs on the subject.
FLEXIBLE WORKING FAQs
What can an employee request?
An employee with more than 26 weeks continuous service can request a change to the number of hours they work, the times they are expected to work and the venue for working for any reason.
Flexible working is so much more than just being part-time. It is a way of working that suits an employee’s needs, for example having flexible start and finish times, compressed hours, working from home and career breaks.
What is the flexible working request process?
The employee triggers the procedure by making a written, dated request.
The employer then has the three-month decision period (which can be extended by agreement) within which to consider the request, discuss it with the employee (if appropriate) and notify the employee of the outcome. ACAS rules on flexible working requests must be followed by both employee and employer.
Your flexible working policy should outline the process, making things transparent for all. If you need a policy, get in touch.
Can a request be rejected or unreasonably refused?
The employer must deal with the application in a reasonable manner within the above time frame. A request may only be refused for one (or more) of the following eight reasons:
- The burden of additional costs on the business.
- 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.
- Planned structural changes.
How many requests can an employee make?
Only one request can be made in any 12-month period. However, an employee is entitled to additional requests if they relate to a statutory entitlement e.g. the Equality Act 2010 right to request reasonable adjustments.
What can an employee do if the request is not sufficiently dealt with?
Not all rejections are unlawful. However, if a perfectly reasonable and workable request is rejected or an employer has ignored or mishandled the statutory procedure, an employee can make a complaint to the ACAS Arbitration Scheme. A claim through the Employment Tribunal is also possible where procedural rules have not been followed, an application is rejected on the basis of incorrect facts, an application is treated as withdrawn when it shouldn’t have been or a detriment has been suffered or the employee is unfairly dismissed because of the request.
Note: If an employee has demonstrated its effectiveness working from home during this period of isolation, my crystal ball predicts that this may form evidence against an employer’s refusal. This position is not supported in case law as it is too soon, so please consider this an inkling!
Who is excluded from the statutory right?
Requests cannot be made by agency workers or employee shareholders (with the exception of those employee shareholders returning from a period of parental leave). Also, under new regulations, members of the armed forces will soon be able to request to work part-time for a temporary period and to temporarily limit “geographical separation” from their home base.
What if an employee wants the change to be temporary?
Generally, a flexible working request is viewed as a request to permanently change the terms of an employees contract. However, temporary changes may be made but will need to expressly state the duration of the desired change and also whether the employee intends to revert back to the ‘former’ terms after this temporary change.
Can a trial period be suggested?
The law does not provide for, or regulate trial periods. Having said this, they are a very good way of showing willingness to comply with the law and employers may be expected to explain why they jumped straight to rejection where a ‘trial’ was proposed.
Can an employee appeal a rejection?
Employers are not expected to allow appeals against rejections under legislation. However, the ACAS Code and case law both suggest otherwise. A right of appeal is strongly advised.
What are the remedies available to an employee where a flexible working request has been rejected unlawfully?
The tribunal will make a declaration that the claim was well-founded, meaning potential reputational damage and may offer an order for reconsideration of the request an award of compensation up to eight weeks’ pay (at a maximum of £525 per week).
Does a rejection amount to discrimination?
It is well established that rejection can lead to discrimination claims. Whether it be a failure to cater to the employee on the basis of sex, religious, disability, these claims can be very costly and have had a record of success within the courts.
Key considerations for Employers
- Meet the statutory requirements when dealing with the request.
- Avoid rejection on ‘technicality’ points such as an error in an employee’s application.
- Give it (and more importantly record!) serious consideration. There are a number of benefits derived from a happy, flexible workforce.
- Your goal should be making it work, not rejection – is a trial period possible?
- Structure your reasons as if you’d have to explain it to a tribunal tomorrow – “it wont work for our business” is not enough.
- Be consistent in your treatment of applications.
For more information or to talk through a post-Covid 19 flexible working policy template, please email firstname.lastname@example.org, or call 01392 256854.