Flexible Working Requests & Rights: Employment Law Advice

Flexible working has become the norm for many employees since the start of the Covid-19 pandemic in March 2020, when a large percentage of the population, particularly office workers, were required to work from home with immediate effect. Despite a gradual migration back to the office in recent months, there has been a general shift towards hybrid working and more flexible working, and many employees are not keen to revert to pre-pandemic working patterns. On 23 September 2021, the Government published a consultation document (which closed on 1 December 2021): “Making Flexible Working the Default” and set out a number of proposals to reform existing flexible working regulations, including:

1. A right for employees to request flexible working from day one of their employment (rather than having to have 26-weeks service);
2. Reviewing whether the eight business reasons an employee may rely on for refusing a flexible working request remain valid;
3. A requirement for employers to suggest alternatives if they intend to refuse an employee’s request for flexible working; for example, a part-time working pattern or a temporary change of working hours/days to be agreed;
4. Reviewing the administrative process, to include introducing the ability to make more than one request in a 12-month period, and reducing the time allowed for an employer to decide about a flexible working request (currently 3 months);
5. Encouraging requests for temporary changes to working arrangements (which are permitted under existing regulations, but which the Government believes could be utilised more).

Problems for Employers?

There is little doubt that flexible working can be of great benefit to employees who want to achieve a greater work-life balance, not to mention providing flexibility for employees who have caring responsibilities for children or other relatives and need to fit their working hours around their caring responsibilities. However, what effect could the new proposals have on employers? Currently, they have several options available to them if they wish to refuse an employee’s request for flexible working, including:

• business reasons, such as a lack of work available during proposed working times;
• an inability to meet customer demand; or
• concerns about the negative effect on performance.

Such reasons may still be valid, even in times of increased hybrid working and, presumably, employers will still have discretion to refuse a flexible working request if there is a genuine business reason for doing so.

One potential problem for employers could be the administrative resources required to deal with what is likely to be an increased number of flexible working requests. This could lead to requests being dealt with on a “first come first served” basis, or requests made by working parents and those with caring responsibilities being prioritised over other employees’ requests. As a result, there is a possibility that employers will unintentionally open themselves up to discrimination claims, and indeed, such claims are already reaching Employment Tribunals. In the case of Mrs Alice Thompson v Scancrown Ltd t/a Manor [ET/2205199/2019], the Tribunal upheld the Claimant’s claim of indirect sex discrimination because of the Respondent’s failure to consider her flexible working request. The Claimant was awarded close to £185,000 for loss of earnings, loss of pension contributions, injury to feelings, and interest.  It is very likely that further claims relating to refusal of or failure to consider flexible working requests will follow.

Employers could also be faced with resentment among staff, some of whom may have had their requests for flexible working accepted, whilst others have been denied. A lack of contact with colleagues in an office environment could result in some employees feeling disjointed from their colleagues and managers and could also have a negative effect on the exchange of ideas and problem-sharing that is a normal part of office-based working. On the plus-side, flexible working can increase productivity and motivation levels among employees and could assist in recruitment, with more applicants being attracted towards employers offering flexibility. As with everything, there are going to be employees that are happy with “non-flexible” working, in the office Monday to Friday 9am to 5pm, and others that embrace the opportunity to fit work in around other commitments and responsibilities, perhaps preferring to work in the evenings or weekends and from a home office or other base rather than the traditional office.

A more flexible working environment could give employers an opportunity to save on office rental and other ancillary expenses such as heating and lighting.  There is the potential for significant savings by utilising a hot-desking policy rather than employees having dedicated workstations. A potential downside of course is that some employers may feel that they have lost a certain amount of control over their employees and work being undertaken if they are not physically seeing those employees daily. However, technology has moved on significantly, particularly since the beginning of the pandemic, and “virtual” meetings on Teams, Zoom, etc are fast becoming the norm. Webinars are replacing seminars and in-person networking and training, saving on travel time and expenses and the resulting cost savings for employers.

Whilst the outcome of this consultation remains to be seen, the employment landscape is changing and is unlikely to return to what most of us previously considered normal.

If you are considering making a flexible working request and want to talk through the procedure, or indeed if your employees are making requests and you require advice on how they should be handled, please contact Kathy Trist on 01392 477983.