The Covid-19 pandemic has certainly brought with it challenges for employers. Our employment team at WBW Solicitors have seen an increasing number of queries from employers on the topic of flexible working, particularly in relation to employees requesting to permanently work from home. The idea of hybrid working, where employees work part of the week at home and part of the week at their workplace, has also become much more common.

It is not surprising that more flexible working requests mean we are now seeing an increase in Employment Tribunal claims in this area. In fact, the last 12 months has seen an increase of 51% in claims raised by employees related to flexible working issues.

Increased flexible working can be a positive move for businesses. Many employers have reported an increase in productivity after embracing flexibility in the workplace, with a happier workforce and cost savings on things like travel expenses and office running costs. The option of flexible working can also attract prospective employees to a certain employer and help to retain existing talent.

It does feel like there is a real push from many directions to encourage employers to embrace flexible working. The recent Government consultation document: “making flexible working the default” could also mean that we will see changes being made to the Law on flexible working.

What are the current rules on flexible working request?

We suggest that employers should have a written policy and procedure on flexible working. We advise employers that their flexible working policy should:

  • Confirm that the right to request flexible working is limited to employees who have a minimum of 26 weeks’ continuous service with that employer and that the right to make a flexible working request, is limited to one every 12 months.
  • Make it clear what the employee should include as part of their flexible working request. For example, the change that they are requesting, the proposed start date and the impact any change to their working pattern would have on the business.
  • State that the employer will hold a meeting to discuss the request. At this stage we advise employers to approach the process with an open mind, consider the request carefully, keep notes of the meeting and, if they decide to refuse the request, refer to evidence to justify their reasoning.
  • The next step will be for the employer to respond in writing. If refusing the request, an employer must rely on one of the eight business grounds (see below). They should also offer the employee the right to an appeal.

In the event of agreeing to a request for flexible working, the procedure can be more relaxed, but the employer will still need to update the employee’s employment contract to confirm the agreed changes. Employers and employees should be mindful that agreeing to a request for flexible working will result in a permanent change to an employment contract, unless the change is clearly expressed as temporary or conditional. This means neither employee nor employer will normally have the automatic right to change their mind in the future.

The eight business grounds that are lawful reasons for refusing a flexible working request are as follows: –

  1. Burden of additional costs.
  2. Inability to reorganise work amongst existing staff.
  3. Inability to recruit additional staff.
  4. Detrimental impact on quality.
  5. Detrimental impact on performance.
  6. Detrimental effect on ability to meet customer demand.
  7. Insufficient work for the periods the employee proposes to work.
  8. Planned structural change to your business.

At first glance the eight grounds may appear wide reaching, but case law has shown that the Employment Tribunal will analyse the employers’ decision to determine if the employer has reasonably considered the request and can justify their use of the business grounds.

In a recent case (Thompson v Scancrown Ltd), an employee succeeded in her sex discrimination claim that arose from the employer’s decision to refuse her flexible working request to change her hours from working 5 days finishing at 6pm to working 4 days finishing at 5pm. The Employment Judge found that the employer did not properly consider her flexible working request, because it was unable to adequately explain why it was reasonable to rely on the five business grounds it used to refuse her request.

Common areas where Employers make mistakes and struggle to defend an Employment Tribunal claim from an employee include:

  • not treating the request in a reasonable manner;
  • not giving the matter due care and attention;
  • failing to consider the facts; and
  • not relying on one of the eight stated business grounds.

The future of flexible working

It appears that changes are on the horizon and the proposals to change the Law on flexible working include:

  • introducing the right to request flexible working from day one (currently the right arises after 26 weeks service);
  • altering the eight business grounds;
  • making it mandatory for employers to suggest alternatives where they are not able to agree to the employee’s request;
  • removing the ‘one request per 12-month rule’;
  • reducing the time an employer has to deal with requests (currently employers have 3 months to give a decision on the request and any appeal, unless an extension is agreed with the employee); and
  • introducing an obligation for employers to take steps to promote the right to work flexibly.

Practical tips for employers

  1. If you do not currently have a flexible working policy, get one.
  2. Revisit your existing flexible working policy and check that it is still suitable for your business.
  3. Consider introducing homeworking and hybrid working policies.
  4. On receipt of a request for flexible working, be aware of the 3-month time limit to give a decision on the request and any appeal.
  5. Beware of the increase in tribunal claims in this area, so ensure that you deal with the request reasonably and use one of the eight business reasons if you reject the application.
  6. Be prepared to back up your decision with evidence to justify your reasoning for turning down a request.

Of course, it will be for an employer to consider any requests on a case-by-case basis, but they should seek legal advice if they are in any doubt about how to deal with a request or the risks to their business in refusing a flexible working request.

If you have any queries whatsoever in relation to any of the points raised please do not hesitate to contact Kerry Curd, a Partner in the employment law team at WBW Solicitors, by phone on 01626 202406 or email kerrycurd@wbw.co.uk.