Employers Take Care! Flexible Working Is Here To Stay And If Not Properly Handled Can Be A Source of Disputes.
The Coronavirus pandemic has of course led to a significant amount of the workforce working from home. Employees have had to adjust their lives and adapt to allow more flexible working patterns to meet the demands of home schooling or childcare.
Before the pandemic approximately 5% of the UK workforce undertook their role mainly from home. This increased significantly during the lockdowns but there is now clear evidence that many employees wish to continue to undertake some degree of homeworking (or flexible working in general) now that all restrictions have ended.
Employers of all sizes should expect to receive more flexible working requests. As a result, they need to be familiar with their legal obligations to avoid costly tribunal claims and to attract and retain their talented individuals.
What is Flexible Working?
Flexible working is a type of working arrangement which permits a degree of flexibility on how long, when, where and at what time employees work. There are lots of different forms of flexible working including homeworking, part-time or reduced hours, job shares, flexitime, staggered start and end times or self-rostering.
It can be informal or formal as part of an employee’s contractual terms. There is a statutory scheme to be followed by employers when handling flexible working requests.
Under current legislation, any employee with more than 26 weeks continuous service at the date of the request can make a formal request for flexible working. Only one request can be made under the scheme in any 12-month period.
An eligible employee may request a change to their term of employment, if the change relates to:
- A change to the hours they work.
- A change to the times when they are required to work.
- A change to the place of work as between their employer’s workplaces and their home.
Under these categories of request, there are a wide range of possible work patterns.
On receiving a formal request, the employer must consider the request including the reasons for it in a reasonable manner and within a reasonable timeframe. The employer can refuse a request for one or more of the eight reasons set out in the legislation. The employer may treat the request as having been withdrawn by the employee if, without good reason, the employee fails to attend a meeting arranged to discuss their request or any further meeting arranged for that purpose. The entire process including any appeal should be concluded within 3 months.
The employee can complain to an employment tribunal if the employer:
- Fails to deal with their application in a reasonable manner.
- Fails to notify them of the decision on their request within the decision period.
- Fails to reply on one of the statutory grounds when refusing their request.
- Makes its decision on incorrect facts.
- Treats the request as withdrawn when the grounds entitling the employer to do so do not apply.
When deciding complaints under the statutory scheme, employment tribunals must take the applicable ACAS Code of Practice into account, if it appears relevant. There are two ACAS documents, The Statutory Code of Practice, Handling in a reasonable manner requests to work flexibly (ACAS Code) and The right to request flexible working; an ACAS guide. Employers should at least be familiar with the ACAS Code to ensure that they avoid unnecessary grievances and tribunal complaints. Badly handled complaints can also result in successful discrimination claims and in particular sex discrimination claims.
Flexible Working Policies
Employers who are able to accommodate flexible working requests and have made the right to request flexible working open to all their staff have generally reported favourable results in terms of staff retention and morale. This is of course much easier for large employers who are more likely to be able to accommodate such requests. It is smaller employers, who make up the vast majority of UK employers and those with highly specialised workforces that face more of a challenge in meeting the needs of a more flexible workforce.
Every employer should prepare a flexible working policy. The ACAS Guide suggests that this policy should:
- Explain how employees should make a request, including who the request should be made to and what should be covered by the application.
- Include a statement that the employer will consider the request and will only reject it for one of the eight business reasons.
- State who can accompany the employee at any meeting regarding the request.
- Explain what arrangements there are for appeals.
- Set out the time limits on handling requests.
For advice or further information on complying with flexible working requests or to obtain a FREE Flexible Working Policy, call Henry Doswell of Doswell Law Solicitors on 01233 722942. Alternatively, email Henry at firstname.lastname@example.org
Disclaimer: Whilst every reasonable effort is made to make the information and commentary contained in this blog accurate and up to date, Henry Doswell takes no responsibility for its accuracy and correctness, or for any consequences of relying on it. The information and commentary in this blog does not constitute legal advice to any person on a specific case or matter. You are strongly advised to obtain specific, personal advice from a lawyer about your case or matter.