As part of our series of publications looking at the Future World of Work we look at the impact of COVID-19 on flexible working requests.
The Coronavirus pandemic has had a major impact on working practices over the last five/six months. With a significant increase in the number of employees up and down the country working from home, will this mean that employers will be faced with an influx of flexible working requests from these employees as they re-open their offices and encourage their staff to return to the workplace?
In this article, we consider the law behind flexible working requests and consider how the future world of work will shape up following this mass adjustment to home working, together with highlighting some of the traps for the unwary.
What are the home-working stats?
A university survey entitled Working from Home during COVID-19 Lockdown Project1, has highlighted a significant rise in the number of employees working flexibly; it shows that 86% of those surveyed had been working from home at some point during the Covid-19 lockdown.
Most respondents expressed that they would prefer to work more flexibly in the future (including 52% of all parents and 66% of non-parents), after benefitting from a better work-life balance, increased productivity and improved wellbeing whilst working from home. Of those respondents who are parents, it showed that 64% of fathers and 59% of mothers would like to reduce their hours to spend more time with their family.2
Similarly, a recent YouGov poll of 4,500 adults (of whom almost 2,400 were workers) found that 81% of respondents expected to work from home at least one day a week post-lockdown, with 33% expecting to work from home at least three days a week.3 4
Can employees insist on requesting flexible working?
Requests for flexible working under the statutory scheme can be made by all employees with at least 26 weeks' continuous employment (i.e. not agency workers, consultants or contractors).
Prior to 30 June 2014, employees could only use the statutory procedure if their purpose in doing so was to enable them to care for a child or an adult. This has now been removed. The request can now be made for any reason and can relate to a change in: hours (e.g. reduce hours or compress hours); times required to work; and/or place of work (as between home and any of employer's workplaces).
The employee triggers the procedure – the request must be in writing and only one request can be made in any 12-month period (although further informal requests could be made). The request must: state that it is an application made under the statutory procedure; specify the change and when they wish it to take effect; and explain what effect, if any, the employee thinks the change would have on the employer and how any such effect could be dealt with.
Employers must deal with a request in a "reasonable manner" within three months (but note that this can be extended by agreement).
Acas guidance5 recommends that employers consider requests on first-come, first-served basis. That of course needs to be balanced with obligations under the Equality Act (such as making reasonable adjustments in relation to a disability) – more on that below.
What are the options available to employers?
- Accept the request – the employee's new working pattern will be a contractual variation to their employment and will be permanent – the employer is obliged to issue a section 4 statement within one month of the change taking effect – preparing a letter recording this change, or new contract entirely, is good practice.
- Accept the request but offer a trial period – employers may choose to offer a trial period (it would go some way in demonstrating reasonableness if an employee requests a trial period, for example) or offer frequent review periods.
- Refuse a request – to legitimately refuse a request, an employer must do so for one (or more) of the eight reasons set out in the legislation – 1) the burden of additional costs; 2) the detrimental effect on the ability to meet customer demand; 3) the inability to recognise work among existing staff; 4) the inability to recruit additional staff; 5) the detrimental impact on quality; 6) the detrimental impact on performance; 7) the insufficiency of work during the periods the employee proposes to work; and 8) planned structural changes.
What else must an employer consider before it accepts or rejects a request?
Employers should be mindful of whether any of the employees making a flexible working request are protected under the Equality Act before deciding which ones to reject or accept. Turning down a flexible working request (legitimately or otherwise) from such an employee may be deemed:
- unlawful discrimination – such as where the proposed arrangement would amount to a reasonable adjustment for an employee's disability;
- direct sex discrimination – for example where the employee is male and the request was made to accommodate childcare responsibilities, if the same request from an equivalent female employee would be allowed;
- indirect sex discrimination – this can be more subtle, but typically arises where the policy is that all flexible working requests to work part time in a particular job role are refused on the grounds that the role is incapable of being done effectively by a part-timer. Unless the employer can justify the policy by showing they have a legitimate business aim that is proportionate, this will be indirectly discriminatory to women as the statistics shows that women are still more likely to combine paid employment with caring responsibilities;1 or
- indirect religion or belief discrimination – where the employee is asking not to work during certain days or times in order to accommodate religious requirements.
Flexible working requests in the post-Covid working world
When considering flexible working requests as offices re-open and employees are encouraged to return to the workplace, employers should consider the following:
- Many employees have been managing their work alongside childcare responsibilities or care for other dependants or have been working their usual working day over longer hours during lockdown. To the extent that employees feel that this arrangement has worked for them, they may have already gone some way in proving to their employer that they can carry out their role successfully at home going forward (permanently or for at least part of the working week).
- Are any of the available business grounds (for rejecting a flexible working request) in fact available post-lockdown? Employers may find it difficult to demonstrate that there will be a detrimental impact on quality or performance of work in the long term – especially if there was no such impact throughout the period of lockdown. That being said, will splitting teams so that some employees work remotely on a permanent basis whilst some work in the office be viable for an employer's business? Although remote working may have been a success with a completely remote workforce, will any issues surface when some begin to return to the workplace whilst others remain at home? How will quasi-virtual meetings work? What about the logistics of managing office space? Will having only a few employees in the office mean these employees will have to pick up others' physical tasks – printing/scanning/filing?
- Look at existing policies and procedures – are flexible working requests considered in accordance with the law i.e. are all requests dealt with in a reasonable manner? Employers should record that they have considered each and every request made, including the reason(s) for it and how it might be dealt with. This way employees understand why their request may have been rejected and are less inclined to appeal and/or worse, file a claim.
- Be prepared for an influx of requests – employers are going to have to embrace flexible working more readily going forwards in recognition of the fact that Covid-19 has shown that it is possible to have a workforce which is far happier (but just as efficient (if not more so than before)).
- Are there any compromises that can be reached between parties? Retaining talent is key to all employers.
What about roles that cannot be done remotely/flexibly?
With many roles which cannot be performed remotely because they require the employee to be physically present in the workplace, remote working requests may be impossible to accept. There are also many roles which require employees to be available at peak hours due to customer demand, so flexible working requests may be a challenge to accommodate in this context. As set out above, employers should only reject flexible working requests from employees in these roles where they are able to rely on at least one of the eight business reasons outlined above. However, even for sectors where roles cannot be performed remotely or flexible hours/patterns of working are challenging to implement (such as retail, manufacturing, hospitality, the care sector), there may still be some roles which are suitable for remote working and employers must not simply write off a request because of these reasons.
The impact of the coronavirus pandemic on our workforces has been huge and will continue to shape how we work (and the typical office set-up) as government restrictions are eased and workplaces continue to reopen – the statistics do not lie and employers cannot ignore the inevitable. We expect that employers will be more willing to consider flexible working as a viable option and may even begin to encourage it because of the many benefits it can bring to employees and employers alike (reduced cost of offices for one!). That being said, the law has not changed and businesses can reject any flexible working if one or more of the eight business reasons for doing so truly applies, even in a post-lockdown context – we may just expect more employees to push back in response.
Please feel free to contact a member of our employment team below or your usual Walker Morris contact should you have any queries regarding flexible working, or dealing with new flexible working requests. We can help you consider what the implications of accepting or rejecting the request may have on the employee making the request and on the wider workforce, as well as any other related queries you may have.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.