Businesses must Expect more Flexible Working Requests

Tina Chander is a Partner and Head of the Employment team at leading Midlands law firm, Wright Hassall. In this feature, she writes about dealing with, and expecting, more flexible working requests from staff due to the COVID-19 pandemic.

Despite the Government’s decision to postpone the lifting of Covid-related restrictions until July 2021, many construction firms have already reopened for business and are now undertaking projects.

However, with a large number of workers being placed on furlough throughout lockdown, many have grown accustomed to a better work/life balance, lower costs and no commute. With this in mind, some individuals are keen to work less hours, and businesses must prepare themselves for an influx of formal flexible working requests.

Of course, the hands-on nature of the industry means that it won’t always be feasible for firms to accept every single remote working request that is made. However, there may be a way to compromise in some cases, so each request should be considered on its own merits, allowing each person an opportunity to give their reasons for making a request.

The first consideration for an employer is whether the employee is eligible to make a formal flexible working request. To make a request, an employee must have at least 26 weeks of continuous employment and cannot have made one in the last 12 months.

What to expect and important considerations

Firstly, it is important to note that any request for flexible working must be made in writing so there is a written record of this, email being just as acceptable as a written letter. Whilst many employees may look to discuss the matter more informally with their Line Manager in the first instance, which is of course understandable and perfectly acceptable, they should be reminded of the need to place their request in writing too.

The flexible working request should, for clarity, state that it is a flexible working request and that the employee meets the eligibility criteria, explain the reasons for the request and provide any other information in relation to the desired working pattern that the employee believes would be relevant and helpful in aiding the employer making their decision.

Flexible working requests can be wide ranging, but will usually cite one or more of the following as the reason for the request:

• Change their work location, e.g. work from home for some or all of their contracted hours
• A reduction or variation of the days the employee works, e.g. compress their contracted weekly working hours into fewer days; or
• A reduction or variation of working hours, e.g. potentially reducing a current full-time role to a part-time one or flexible start and finish times for their working day;

Having received a request, the employer must deliver an answer within three months, allowing time for the individual to submit an appeal if the decision goes against them. This time can be extended by mutual agreement, when considerations are more complicated. There may be occasions where the request can be approved easily and without the need for further discussion. However, this is highly dependent on the request made and the usual course of practice is likely to be to arrange a meeting with the employee to discuss their request further.

Reasons to refuse a request

There will inevitably be circumstances where employers cannot accommodate a flexible working request; an outcome which may become more necessary if numerous requests are being received. However, employers must remember that they can only refuse a flexible working request for one or more of the reasons detailed in the legislation:

• Additional costs associated with change will impact the business;
• The changes will make it more difficult to meet expected customer demand;
• The inability to redistribute work among colleagues;
• The inability to hire new staff to fill gaps left;
• Service quality will be negatively impacted by changes;
• Performance of the business will be reduced by any change;
• Lower demand at the times the employee wants to work; and
• The business is already planning changes to the workforce.

Again, this decision should be communicated in writing, with an explanation as to the reason(s) for refusal of the request and the option for the employee to appeal the decision.

When assessing requests for flexible working, employers must also be mindful of whether any of the employees are protected under the Equality Act 2010 before deciding whether to accept or refuse their requests. Refusing a request from employees afforded such protection could result in claims of discrimination, which can be very costly for employers.

Working through lockdown might be a problem

Although remote working may not be possible for employees who are required to work on site, there are some individuals who would like to reduce their hours, so they can enjoy a better work/life balance. Whilst it may not be an issue to accept some of these requests, the problem comes when a large percentage of the workforce all ask for similar outcomes.

Despite this, it is still important to consider each request on its own merits, taking the time to understand the reasons why certain people are asking for flexibility. Remember, it is important to exercise caution before accepting a request, as some employees may feel they have been unfairly treated, especially if their request has been denied.

Where possible, you should try to reach a suitable compromise, as this will keep employee morale high. In any case, make sure you explain your decision carefully, so that every employee understands the position you have taken.

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