Despite the Government’s decision to postpone the lifting of Covid-related restrictions until July 2021, organisations are still eager to restore normality by allowing employees to return to the workplace in some capacity.

With businesses looking to get back to full productivity, the expectation that many employees will put forward flexible working requests is concerning given the volume of anticipated requests. This is due to the fact that a lot of people experienced the benefits associated with flexible working, including no commute, lower costs and a better work/life balance.

Of course, it is unrealistic to expect businesses to accept every single flexible working request that is made, especially if certain individuals are needed in the workplace to oversee and manage projects. Even still, employers should take the time to consider each request separately, so they can assess individual’s reasons and potentially reach a compromise.

The first consideration for an employer is whether the employee is eligible to make a formal flexible working request. To make a request, an employee must have at least 26 weeks of continuous employment and cannot have made a similar request within the last 12 months.

What to expect and important considerations

Firstly, it is important to note that any request for flexible working must be made in writing so there is a written record of this, email being just as acceptable as a written letter. Whilst many employees may look to discuss the matter more informally with their Line Manager in the first instance, which is of course understandable and perfectly acceptable, they should be reminded of the need to place their request in writing too.

The flexible working request should, for clarity, state that it is a flexible working request and that the employee meets the eligibility criteria, explain the reasons for the request and provide any other information in relation to the desired working pattern that the employee believes would be relevant and helpful in aiding the employer making their decision; the more information given, the easier the process will be in determining the practicality of the request. 

As noted above, an employee can only make one formal flexible working request in any 12-month period, and so employers should check their records to ensure no such request has been made within this timeframe.

Flexible working requests can be wide ranging, but will usually cite one or more of the following as the reason for the request:

• change their work location, e.g. work from home for some or all of their contracted hours;
• a reduction or variation of the days the employee works, e.g. compress their contracted weekly working hours into fewer days; or
• a reduction or variation of working hours, e.g. potentially reducing a current full-time role to a part-time one or flexible start and finish times for their working day.

Having received a request, the employer must deliver an answer within three months, allowing time for the individual to submit an appeal if the decision goes against them. This time can be extended by mutual agreement, when considerations are more complicated. There may be occasions where the request can be approved easily and without the need for further discussion. However, this is highly dependent on the request made and the usual course of practice is likely to be to arrange a meeting with the employee to discuss their request further.

Reasons to refuse a request

There will inevitably be circumstances where employers cannot accommodate a flexible working request; an outcome which may become more necessary if numerous requests are being received. However, employers must remember that they can only refuse a flexible working request for one or more of the reasons detailed in the legislation:

• additional costs associated with change will impact the business;
• the changes will make it more difficult to meet expected customer demand;
• the inability to redistribute work among colleagues;
• the inability to hire new staff to fill gaps left;
• service quality will be negatively impacted by changes;
• performance of the business will be reduced by any change;
• lower demand at the times the employee wants to work; and
• the business is already planning changes to the workforce.

Again, this decision should be communicated in writing, with an explanation as to the reason(s) for refusal of the request and the option for the employee to appeal the decision.

When assessing requests for flexible working, employers must also be mindful of whether any of the employees are protected under the Equality Act 2010 before deciding whether to accept or refuse their requests. Refusing a request from employees afforded such protection could result in claims of discrimination, which can be very costly for employers.

Working through lockdown might be a problem

Before the lockdown, the idea of widespread remote working would have been dismissed by most organisations, but in the post-pandemic era, a lot of employees have now experienced the benefits of flexible working and employers have been encouraged by maintained productivity levels.

Therefore, businesses should expect an influx of remote working requests in the months ahead, and they should take the time to process them all appropriately. This also means giving consideration to the rest of the workforce, so that nobody is left with feelings of unfair treatment if their requests are refused and other requests are not.

Where possible, businesses should look to compromise with employees, as this will ensure that team morale is not unnecessarily damaged. Go into the meeting with an open mind and try to reach an amicable solution that works for both parties.

Tina Chander is a Partner and Head of Employment Law at leading Midlands law firm, Wright Hassall. Tina deals with both contentious and non-contentious employment law issues acting acts for employers of all sizes ranging from small businesses to large national and international businesses. She advises in connection with a variety of employment law matters, including all aspects of employment tribunal proceedings and appeals. Email tina.chander@wrighthassall.co.uk.

Wright Hassall is a top-ranked firm of solicitors based in Warwickshire, providing legal services including: corporate law; commercial law; litigation and dispute resolution; employment law and property law. The firm also advises on contentious probate, business immigration, debt recovery, employee incentives, information governance, professional negligence and private client matters.

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