UK employers must prepare for post-pandemic flexible working requests

Employees are increasingly prioritising the ability to work flexibly, with nine in 10 people surveyed by EY earlier this year saying that they wanted more flexibility about when or where they work once pandemic restrictions ease. Only 22% of those surveyed said that they would opt for a traditional full-time office based working week, with employees seeking to work from home between two and three days a week, and 33% saying they want a shorter working week altogether.

Since 2014, any employee with more than 26 weeks’ service has a right to request flexible working for any reason. Flexible working can refer to a variety of arrangements including part-time work, ‘compressed hours’ over fewer days, remote working, ‘flexitime’ and job sharing arrangements. Employers have a duty to deal with requests in a reasonable manner, and can only reject the request for one or more of the eight business grounds specified in the legislation.

Employers should take this opportunity to review their flexible working policies in preparation for a potential increase in requests, and ensure that any changes following their experience during the pandemic are accurately reflected.

Returning to the office: the default position

Where an individual’s contract of employment provides that they are required to work at a prescribed location, for example their employer’s office, then the employer can expect the employee to return to the workplace once pandemic restrictions lift. If the employee refuses to return, and the employer sees that refusal as unreasonable, this could result in formal disciplinary action.

While many employees will be keen to return to the office to some degree, others who may not necessarily have considered flexible working in the past will have seen some benefits from their experiences during Covid-19 – for example, being better able to balance work and family commitments, or developing a better work-life balance without a long commute. A flexible working request may offer those employees the opportunity to formalise new working patterns.

The right to request flexible working

The legal position is that all employees with at least 26 weeks’ continuous employment are able to make a statutory request for flexible working, in writing, for any reason. A new request can be made once every 12 months.

Where a request is made, the employer must deal with that request in a reasonable manner and notify the employee of the outcome, including any appeal, within a three-month period, unless that timeframe is extended by mutual agreement. If the employer wishes to reject a statutory request, it can only do so on one of the statutory grounds:

• burden of additional costs;
• inability to reorganise work among existing staff;
• inability to recruit additional staff;
• detrimental impact on quality;
• detrimental impact on performance;
• detrimental effect on ability to meet customer demand;
• insufficient work for the periods the employee proposes to work; and
• a planned structural change to the business.

Employers which have sought to postpone dealing with flexible working requests due to the uncertainty around Covid-19 restrictions should note the three-month time limit for dealing with requests, which is a legislative requirement.

Responding to flexible working requests

The success that some employers have experienced during this period of enforced home working is likely to make them more open to requests that these arrangements continue. However, the previous year has been an exceptional one, and there are legitimate business reasons why an employer might seek to turn down a request for permanent home working.

Traditionally, one of the most common statutory reasons for rejecting flexible working requests has been detrimental impact on quality or performance. Employers are not limited to comparing performance with that of the previous year – just because the business didn’t grind to a halt during the period of lockdown doesn’t necessarily mean that home working had no detrimental impact. The important thing for employers will be ensuring that the refusal is objectively justified and is not discriminatory, and that the employee is not subject to any detriment for exercising the right. The employer should also of course ensure compliance with their own flexible working policy and with the Acas code of practice on handling in a reasonable manner requests to work flexibly. Where there is a formal change to terms and conditions, this should be communicated in writing to the employee.

For example, employers might have legitimate concerns about the effectiveness of remote supervision generally, or there may be aspects of certain roles that do not work as well when team members are working from home. They may also want staff to attend the office in person one or two days a week to allow for effective collaboration, mentoring of younger staff and integration of new team members.   

However, the pandemic has clearly demonstrated the opportunities offered by new ways of working and, in roles where flexible working arrangements are possible, both employers and employees can reap the benefits – particularly around attracting and retaining diverse talent, and living up to corporate culture and values. Employers who can offer a full range of flexible working models and not just pay lip service to the statutory regime will be seen as progressive and looked on favourably by those who value these arrangements.

Co-written by Laura Starrett of Pinsent Masons