Flexible working and the right to make flexible working requests has existed in UK law since the Employment Rights Act 1996 was updated in 2014 with the Flexible Working Regulations 2014. There are many obvious benefits to flexible working for employees, including increased productivity, but what are the benefits to businesses? Meanwhile, when employees apply for flexible working, how should leaders consider whether such requests should be granted?
Although employees don't automatically have the right to work flexibly (which could mean tweaking working hours, job sharing or working from outside the office at times), they do have the legal right to formally request a change in normal working conditions.
As long as an employee has worked at the organisation for at least 26 weeks and have not made a flexible working request in the last year, they are eligible to have their request considered by their manager. These requests must be written and dated by the employee. All requests must state they have been placed under the statutory procedure and include details of the conditions of their request, including the date they wish to start working flexibly.
All requests must also state how the change could impact their role and what measures will be taken to ensure their position is covered in the same way it is in their current contract/arrangement.
The employer must deal with any request within three months and in a "reasonable manner", although the law relating to requests doesn't define what is reasonable. According to ACAS guidelines, employers should arrange a meeting to discuss the request as soon as possible. This is not a statutory requirement but is good practice.
The meeting should find out what changes the employee is seeking and their reasons. It is good practice to allow the employee to be accompanied at such meetings by a colleague or union representative.
The law requires the whole process to be completed within three months of the request being filed; this should also include any appeals if the request is rejected.
If a request is accepted, this will mark a permanent change to an employment contract.
If a request is rejected, there should be a sound business reason for doing so. The reason for rejecting a request should be one of the following:
- the burden of additional costs
- an inability to reorganise work amongst existing staff or recruit additional staff
- a detrimental impact on quality or performance
- a detrimental effect on ability to meet customer demand
- insufficient work for the periods the employee proposes to work
- planned structural changes to the business
Appeals and tribunals
What is flexible working? Make flexible working work Benefits of flexible working (including for parents)
If an employee appeals a rejection, It should be arranged that this appeal is heard by a different manager/partner wherever practical. Again, the employee should be allowed to be accompanied at the appeal hearing by a colleague of their choice.
If the appeal is upheld, any notification must specify changes to an employee's contract and the date from which these changes take effect. If an appeal is refused, it must be explained on what grounds the refusal is based and why they apply to the case.
An employee may take things forward to a tribunal if an appeal is rejected. However, the tribunal won't look at the business reason for rejection but will instead attempt to determine whether the correct procedure was followed; whether the request was taken seriously, whether the decision was based on correct facts, and whether the reasons given were within the ones permitted under legislation.
If the tribunal finds the employer at fault, it can order the decision to be reconsidered and can award up to eight weeks' pay.
Flexible working during the coronavirus pandemic
The coronavirus pandemic and the subsequent need for self-isolation mean that an increasing number of employees will be working from home in a flexible manner.
According to the recent guidelines for employers and businesses issued by the UK government, companies are advised to ask their staff to work at home, while especially vulnerable employees (e.g. those with preexisting respiratory conditions and those who are older or pregnant) "should be strongly advised and supported to stay at home and work from there if possible".
Although the guidance warns that if "anyone becomes unwell with a new, continuous cough or a high temperature in the business or workplace they should be sent home", this is not only reserved for the ill. It is arguably better to take precautions now and encourage your team to practise social distancing - after all, flexible working has plenty of benefits, especially for parents of small children, whose normal school or childcare arrangements might have been cancelled because of the pandemic.
Moreover flexible working during these difficult times might lead to a boost of morale among employees and help them become more productive. But above all, it keeps your employees safe, and that should be your business' priority at the moment.
