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We are witnessing a workplace revolution in the UK. The extraordinary events of the last 12 months have seen a dramatic increase in home and flexible working for UK employees and the evidence suggests that employees would like this flexibility to continue longer term in some form. With the government’s roadmap out of lockdown promising a lifting of restrictions and companies starting to plan a return to the workplace, employers should be prepared for a possible surge in flexible working requests post-Covid.

A shift in approach

With offices across the country closed, huge numbers of employees have been working from home, in some cases for the first time, for the best part of a year. The Office for National Statistics reports that almost half of all employees in the UK were working from home during the first lockdown, something which is likely to have been repeated in the current one.

However, flexible working means more than working from home. Flexible working can also encompass part-time working, reduced hours, compressed hours, term-time working arrangements and much more. Indeed, many working parents have utilised these other flexible arrangements during the pandemic due to the closure of schools and the need to balance work and caring commitments.

Although the significant shift in where and how we work has been bought about by necessity, various surveys undertaken in the last year report that the UK workforce wishes to retain flexibility after the pandemic. Indeed, a recent report on Working from Home under Covid-19 found that 73 per cent of employees would like to continue working from home some of the time. Given this, companies should prepare themselves to receive an increased number of requests to work flexibly post lockdown.

The legal position

Since 2014, employees with at least 26 weeks' continuous employment have been able to make a statutory request, in writing, for flexible working, for any reason. For an overview of how the statutory scheme works, see Louisa Steele’s article on How to make flexible working for all. It is also possible for employers to allow their employees to make informal flexible working requests outside of the statutory scheme.

Employers will also need to consider the extent to which the pandemic – and particularly the fact that it has shown that flexibility can work – might impact on their ability to refuse flexible working requests going forwards. As a reminder, employers wishing to reject a statutory request, can only do so on one of eight statutory grounds, including costs, ability to meet customer demand and inability to reorganise work. While previously employers may have refused requests on the basis that, for example, it was not possible for certain work to be carried out from home, employers may now find it harder to rely on these reasons with employees who have shown during the pandemic that they can be efficient and productive whilst working flexibly, and in light of technological advances which enable remote working. 

That’s not to say it won’t be possible to refuse a request, but employers seeking a return to office working will need to provide clear evidence about why flexibility is no longer possible notwithstanding the fact it has worked over the last year. 

Employers unreasonably refusing a request, risk employees bringing a claim under the statutory scheme, and, in certain circumstances, claims for constructive unfair dismissal. More significantly, employees protected under the Equality Act 2010 (for example, women requesting flexible working for childcare purposes) could bring discrimination claims, where there is no limit on the compensation that can be awarded. Therefore, handling flexible working requests appropriately will be crucial going forwards.

Tips on handling flexible working requests

Employers handling flexible working requests should consider the following:

  • Have a clear and consistent process for dealing with requests, ideally in the form of a flexible working policy which incorporates the statutory requirements and the principles from the Acas Code of Practice on handling in a reasonable manner requests to work flexibly here.

  • Deal with requests promptly (and within a period of three months of receipt).

  • If a number of applications are received, deal with applications on a first come first serve basis.

  • Meet with the employee to discuss the request, allowing the employee to be accompanied by a work colleague.

  • Consider the request carefully, looking at the benefits of the requested changes in working conditions for the employee and your business and weighing these against any adverse business impact of implementing the changes.

  • Consider a trial period of a reasonable length of time.

  • If you intend to refuse a request, consider alternative arrangements which might work.

  • Inform the employee of your decision in writing. If you are refusing a request, outline the statutory grounds for your refusal and provide supporting evidence.

  • If you reject a request, allow the employee to appeal the decision.

  • Consider training for line managers, both on handling flexible working requests and on managing an agile workforce.

Conclusion

Even before Covid, UK employment law was moving towards increased flexible working, with the government’s proposed Employment Bill, announced in the Queen’s speech in December 2019, promising to make flexible working the default position unless employers have a good reason otherwise. Since then, the workplace has changed dramatically and for many flexible working has become the new normal during the pandemic. It is yet to be seen to what extent this changes once workplaces start to reopen, but there is no denying the cat is well and truly out of the bag as far as flexible working is concerned and employers should be ready to respond to changing demands. 

However, a move to flexible working should not simply be seen as an additional burden for employers. If the past year has shown us anything, it is that flexible working can bring benefits for both sides, for instance, in terms of cost savings, increased job satisfaction and engagement, and better mental health.  For some employers therefore, this may be more than just a question of considering flexible working requests. Instead, this could be seen an opportunity to think imaginatively about future ways of working and to consider whether increased agility could be incorporated into the workforce in a sustained and beneficial way as things start to reopen post-Covid.

If you require further information about anything covered in this blog, please contact Chloe Westerman, or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, March 2021

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