Eighteen months into the Coronavirus Pandemic, which has involved lengthy periods of enforced home working for staff, it is clear that for many businesses, working from home as the new normal has been a success.
In the days pre-pandemic many employers were reluctant to allow their staff to work from home, fearing that the privilege would be abused and that staff would be less productive. There were certainly trust issues in allowing staff to work from home.
During the Pandemic many employers have actually discovered that their staff have been just as productive and, in some cases, even more so.
There have also been many benefits for staff who have been forced to work from home in that they have enjoyed a better work-life balance, without the daily commute to the office, which was time consuming and costly. It would be fair to say that many have enjoyed these benefits which have also enabled them to save money from not having the daily commute.
Now that Coronavirus restrictions have been eased, and staff are now returning to the office, many UK employers are anticipating an increase in flexible working requests. In addition, the Government has issued a Flexible Working Bill which suggests updating the law on the right to flexible working and this is dealt with below.
Now that restrictions are easing, many employers legitimately want their staff back in the office. There are still concerns as to how remote working can be effectively supervised, as well as the importance of teams working together in a face-to-face setting which may generate better results especially in a sales environment.
There is also the argument that it is important for younger members of staff to work in the office and to integrate and learn from their peers and from management. This cannot be undertaken effectively from home and Zoom and Microsoft Team video meetings are not as effective and are not a substitute.
What is flexible working?
Flexible working can take many forms, for example it can include the following:-
Requesting a reduction in hours and days to part time working.
Requesting hybrid working patterns involving more working from home.
Looking at Job share arrangements.
Changing working hours.
Compressed hours worked over fewer days.
Flexi-time arrangements involving working longer hours and banking time to take off in the future.
Quite often the request is made as a consequence of individual members of staff experiencing life changing experiences for example the birth of a new baby, or to accommodate care arrangements for an elderly relative and dependent.
Prior to the Pandemic, statistics show that only one in three flexible working requests were successful.
Since the Pandemic, and according to a survey carried out by Ernst & Young, nine in ten people said that they wanted more flexibility about where and when they worked once restrictions were eased. Only 22% of those surveyed would opt for fulltime working hours in the office, with the majority wanting to work from home two or three days per week. It was also surprising to learn that 33% wanted a shorter working week.
A recent YouGov survey has also confirmed that the majority of staff would prefer to continue to work from home at least some of the time. The survey also shows that some 40% of employers expect more than half of their workforce to work regularly from home after the Pandemic has ended
What is the current law?
Currently the right to request flexible working arrangements is reserved for employees as opposed to workers, and an employee will only be able to make the request if they have a minimum of 26 weeks’ continuous service.
Many employees wrongly believe that they are entitled to flexible working rights especially as it has been so successful for many businesses during the Pandemic. Unfortunately, this is currently not the case, as employers only have to give consideration to such requests. In other words employers do not have to agree and grant flexible working as long as they can show that they have considered the request.
Employers do however have a legal obligation to deal with flexible working requests from their employees in a reasonable manner and can only reject the request for one or more of eight business reasons specified in the legislation. The eight business reasons are-
The burden of additional costs.
The inability of the employer to reorganise work amongst existing staff.
The inability to recruit additional staff.
Detrimental impact on the quality of work.
Detrimental impact on performance.
Detrimental effect on the ability to meet customer demand.
Insufficient work for the periods the employee proposes to work.
A planned structural change to the business.
The starting point for employers is also any contract of employment which may state a place of work for example the office address of the business. Now that restrictions have been eased (since July 19th 2021) an employer can reasonably request that their staff return to the workplace and on a full-time basis. In fact the Government has been actively encouraging a return to the office.
If any employee refuses to return to the office, then this could be viewed by the employer as completely unreasonable and could lead to the implementation of disciplinary proceedings for example for refusing to carry out a lawful instruction and also it could be classed as unauthorised absence.
Once a flexible working application has been made and dealt with, the employee will then have to wait a further twelve months to make a new request.
If as the employer, you receive a flexible working request, you will usually need to arrange a meeting with the employee who has made the request. There is also a form that can be completed by the employee which asks them to comment on how they believe that their flexible working will impact on the business and other members of the team.
The process must also be dealt with within a period of three months and this includes any appeal against the original decision. This period can however be extended by agreement between the employer and the employee making the request.
It is also important that employers ensure that any objection to flexible working requests is objectively justified. Employers should particularly ensure that they are not for example discriminating against any employee who has made the request, for example a female employee wanting to reduce her hours of work or to work from home on a more regular basis, and this also includes treating the employee detrimentally on the basis that they have made such a request. Any form of discrimination and detrimental treatment are actionable in the employment tribunal and these are rights available to such employees from day one of their employment.
There is also an ACAS Code of Practice on handling flexible working requests that employers need to be aware of and it is recommended that they take some time to review them.
If any flexible working arrangements are agreed then this may lead to a change to some of the employee’s terms and conditions of employment. Any formal changes to terms and conditions of employment should be communicated to the employee in writing. It may be the position that any changes are agreed on a trial basis with a view to revisiting the arrangements, say after three months to see how they are working out, with the employer retaining the right to revert to the previous arrangements if they do not work out. Again it is important to confirm this in writing to the employee so that the position is clear.
What has the Government proposed?
The current law of flexible working is now outdated and the Government plans to modernise the way we work and to make the right to request flexible working a day one right – from the start of the employment relationship.
The Government did pledge this commitment in its 2019 election manifesto and so it is not something so new. The Pandemic however has acted as a catalyst for the Government to push ahead with its proposals and it has issued a Flexible Working Bill which is being considered by Parliament.
The proposals also look at reducing the current one year per application rule as well as cutting the current three-month period that an employer has to consider any request.
In addition, if an employer is unable to accommodate a request, it is suggested that they would need to think about the alternatives that they could offer, for example if they are unable to change the employee’s hours of work on all working days, then can they consider making the change for certain days?
The consultation also looks at a range of flexible working methods such as job-sharing, flextime, compressed and annualised hours, staggered hours, and phased retirement. The Government also wants employees to better balance their work and home life, and especially those who care for children and who have other care responsibilities or who may be new parents or disabled.
The Government also believes that the proposals that it is putting forward is good for British business on the basis that companies that embrace flexible working can attract more talent, improve staff motivation and reduce staff turnover, thereby boosting productivity and competitiveness in the process.
There are also some areas where flexible working will not work and the Government still wants employers to be able to reject such requests if they have sound business reasons for doing so.
The proposals if implemented will benefit millions of people, and especially those who provide unpaid care where the Government proposes one week of unpaid carer’s leave per employee per year which will also be available from day one of employment. The leave can be taken in half days to a whole week.
In summary, the Pandemic has taught us that flexible working can work for many employees and the Government has recognised this by proposing making the right to request such flexible working a day one right for all workers. It is clear that the law does need updating in this area however the proposals still only enable workers to make a request as to actually being granted flexible working rights. The employer is likely to retain the right to ultimately decide against implementing such flexible working rights if it chooses to.
If you have any questions relating to the right to make flexible working requests then contact Steven Eckett, Partner and Head of Employment here at Meaby & Co LLP.
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