A Flexible Way Forward?

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The pandemic forced many businesses into a whole new world of working. No longer was it 9-5 in the office every day but a remote world that for many proved to be a great success. As a result, many employees are looking to retain that flexibility and balance moving forward.

Recruitment is also changing, as home working grants greater reach in terms of recruitment areas, employers are competing not only locally, but in many cases nationally as well.

Now that the government has confirmed that we no longer need to work from home, is your business going to go back to pre-pandemic times or will you adopt a more flexible model?

The legal position on flexible working

Under current legislation, employees with 26 weeks of continuous service have the right to make a flexible working request. However, consultation on a government proposal to remove this period of qualifying service closed in December 2021. This is perhaps an indication of how the way that we work, is changing.

What are flexible working requests?

Although the name may seem self-explanatory, making such a request isn’t as simple as an employee asking if they can work from home two days per week (something that you would deal with much more informally). It requires a realistic consideration of how such a change will work in practice and the impact it may have on the business and other employees.

In order to make a qualifying request an employee must:

· State that they are making a flexible working request;

· Detail the change they would like to be considered and the date on which it would take effect;

· Set out the impact they believe their request would have on their employer’s business; and

· Suggest ways in which that impact might be addressed.

Employers are obliged to deal with any qualifying requests in a ‘reasonable’ manner and, unless a longer period is agreed, inform the employee of their decision within 3 months.

It’s important to note that an employee is only entitled to make one such request in any 12-month period. Once a request has been made, employers are under no obligation to consider further requests, though may do so at their discretion.

When can employers refuse flexible working requests?

There are limited grounds on which an employer can refuse a flexible working request, and they all relate to a detrimental impact on an employer’s business.

Employers can also agree to a temporary trial period which allows them to review the impact of the changes proposed in practice and to support a decision to refuse requests in the event they have a detrimental impact on business.

What about informal requests?

Although a formal process does not necessarily need to be followed if an employer receives an informal request for remote working or a mixture of remote and home working (the hybrid model), they should always act fairly and consistently when making a decision. Advice should also always be taken when a request relates to childcare, health or caring for dependants.

Factors to consider in both cases are;

· Performance during the pandemic: if it worked then, why can’t it work now?

· Reasons for the employee making such a request: is it related to childcare, health reasons, caring for dependants or just a better work-life balance?

· Costs: could this new model of working save costs (particularly travel costs) for the employee perhaps making them more motivated and happier? Could it also save costs for the business if there is an ability to reduce office space?

· Presence: does the role require an in-person presence for team building, meetings with customers/ clients or for supervisory reasons?

It may be that a flexible model could help to grow your business and attract more candidates without having to offer significantly higher salaries.

If you do make changes to terms of employment (including an employee’s place of work) these changes must be recorded in writing.

Please contact us to discuss working more flexibly.

(February 2022)