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The Government consultation on flexible working and what it could mean for employers

The Government consultation on flexible working and what it could mean for employers 1

By Sharron Bhandal, senior associate in the employment team at Blaser Mills Law

The pandemic has led to an increase in flexible working and, as restrictions continue to lift and employees return to the office, employers are anticipating an influx of requests around working remotely and flexibly.

The Government has responded to this with a planned review later this year to examine a proposed expansion of employees’ rights regarding flexible working and working from home, with a Government spokesperson claiming the consultation will consider making flexible working the default.

While there is no legal right for employees to work from home, it is important for employers to take this chance to review their current policies around flexible working, and their obligations should an employee make such a request.

Responding to a statutory request

Under the Employment Rights Act 1996, requesting flexible working arrangements is a statutory right for employees. An employee has the right to make this request if they have had the same employer for 26 weeks and may only make a statutory request once in any 12-month period.

The employee must make this request in writing to their employer and should include the date of the application, the nature of the change in working conditions they are seeking, and when this change would come into effect.

If an employee fails to attend a meeting to discuss their application or appeal and fails to attend a rearranged meeting without a good reason for example, illness, an employer can consider the request as withdrawn and must then inform the employee.

When an employer receives a request, they must deal with it in a reasonable manner and notify the employee of the outcome, including the result of any appeal, within a 3-month period unless an extended timeframe has been agreed with the employee.

If an employer chooses to reject a statutory request, they may only do so on one or more of the following statutory grounds:

  • Burden of additional costs on the business
  • Inability to reorganise work amongst existing staff
  • Inability to recruit additional staff
  • Detrimental impact on quality of work
  • Detrimental impact on work performance
  • Detrimental to meeting customer demand
  • Insufficient work for periods employee proposes to work
  • Planned structural changes to the workforce or business

What constitutes a “reasonable manner”? 

Requests for flexible working must be dealt with by an employer in a reasonable manner, and failure to do so could mean an employee has the right to complain to an employment tribunal.

While an employee may not take their case to a tribunal simply because their application was denied, they may do so if their application was incorrectly treated as withdrawn or was rejected based on incorrect data. Dismissal or poor treatment for example, being denied a promotion or pay rise of an employee due to their request can likewise be grounds for a tribunal hearing.

Employers should always ensure compliance with their own internal flexible working policies, along with the Acas code of practice on handling in a reasonable manner requests to work flexibly.

Though there is no statutory right for an employee to appeal a decision on their request, offering an appeals process does allow an employer to demonstrate they are handling flexible working requests in a reasonable manner. In these cases, it is important that both the employer and employee follow the company procedure on appeals.

Proper implementation of flexible working

Along with a balanced approach to dealing with flexible working requests, it is also important for employers to consider the wider impact of any flexible working company policies they may choose to implement.

Employers must ensure that any flexible working policies they are considering will not result in certain groups of employees being unfairly prejudiced. If any employees are put at a disadvantage from improper implementation of these policies, it may give rise to a discrimination claim.

One example of this is termed the “childcare disparity” between men and women, whereby women are less likely to accommodate certain work patterns due to a greater burden of childcare responsibility. Employers must therefore consider these responsibilities and any other constraints that could impact employees’ ability to work flexibly.

Likewise, flexible working opportunities should be extended to those unable to work from home to avoid benefitting only those with office-based roles. This could include job sharing, part-time working or flexi-time.

Certain employee rights must also be upheld when working flexibly or remotely, including equal treatment to office-based employees, and access to the same training and promotion opportunities.

Employers should remain mindful of their obligations towards data protection in cases where personal data in stored at an employees’ home and should ensure the same health and safety standards extend to home-based employees as those in the office.

Conclusion

The pandemic has had a huge impact on employees’ approaches to work and the need for flexibility in many cases, leaving companies forced to adapt to these changes as restrictions are lifted.

While the Government considers plans to make flexible working the default, employers will need to weigh up the potential benefits, such as increased productivity, against potential negative impacts on collaboration and team cohesion.

If you have concerns about how these changes could affect your business and how to handle requests for flexible working from staff then seek legal advice from a specialist employment lawyer who can advise you on keeping your company policy up to date and the best course of action when handling these requests.

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