An Employer’s Guide to Flexible Working 

The coronavirus pandemic has turned the world of work on its head. From temporary lockdown closures and furlough to remote working, every business has been affected and many continue to be so.

The Chartered Institute of Personnel and Development (CIPD) surveyed over 1000 businesses last month and found that once the pandemic has ceased,  the proportion of the UK workforce working from home on a regular basis is likely to increase to 37% compared with 18% before the pandemic.

We provide bespoke guidance and support to many different types of businesses across all sectors and in addition to home working, many employers have had to introduce other measures to safeguard the future viability of their business.

These measures have included the use of flexible furlough in the hospitality industry in order to scale back on working hours due to decreased capacity in venues to accommodate social distancing and staggered shift start and end times for office workers to ease the anxiety of travelling on crowded public transport during rush hour.

Despite the announcements of local lockdowns and concerns over spikes in cases of the virus, as the country tries to look towards gaining some semblance of normality, we address the practical impact working flexibly in the short term may have on businesses in the long term and what to do if you are faced with requests from your staff to make pandemic working changes permanent.

I have implemented home working across the business and used furlough for those whose roles could not be carried out from home. Overall it has worked well but I am concerned that if I need to continue to use home working that it will eventually become ‘the norm’ and my staff will not want to come back to the office. What should I do?

This is a very common scenario being faced by a lot of businesses and an employee’s core terms and conditions can change over time, whether that is a change in their shift patterns, the payment of an allowance or working from home. Notwithstanding the current pandemic, a temporary change in an employee’s terms and conditions will likely become a contractual change over time.

For example, an employee comes to you and says their usual bus route into work is facing some temporary changes due to roadworks and they are envisaged to last for approximately 6 weeks, they ask if they can temporarily change their start time from 9 am to 10 am to allow for a longer commute. You agree to this but before you know it, 12 months have gone by and you are now expecting the employee to attend a daily morning meeting at 9 am and they refuse because they now view 10 am as their contractual start time.

Yes, you could say that the employee is being rather awkward and in this instance the employer is likely to have a good business case for implementing a change back to their 9 am shift pattern. However, as nothing was agreed in writing, the situation was never monitored or reviewed, and a significant amount of time has now passed- the employee can also argue that their start time of 10 am is now contractual. This leaves the employer being best advised to enter into a period of consultation prior to making changes to the shift start time in order to prevent a breach of contract or constructive dismissal.

Where does that leave us with regards to the current pandemic? After all, employers are being encouraged by the government to be as flexible as possible but with none of us knowing how long it will take to get back to ‘normal’, it is very hard to manage what are hoped to be temporary changes to the terms and conditions of the workforce.

Communication is very important of course. Staff need to know that any changes agreed to their terms and conditions are temporary and they will revert to what they were prior to the pandemic when it is safe to do so.

Rememberverbal agreements are not worth the paper they are not written on. Seek advice from our experts and we will assist you in providing bespoke written correspondence to your staff to ensure that you are not emerging from the pandemic with a HR nightmare on your hands.

One of my employees understands that they are required to return to the office, but they are requesting to work from home on a permanent basis. Can I just inform them that this will not be possible?

In theory yes but there are a few things to consider first.

If the employee in question has at least 26 weeks service with you, their request to continue to work from home should be dealt with as a flexible working request.

What is a flexible working request?

This is a request from an employee to change their contract, usually it is a request to change their working hours, shift patterns or working location.

I issued a letter to this employee to make clear that working from home was temporary, why am I now being told that they can make a request for flexible working?

It is best practice to make clear the changes were temporary, so you did the right thing by doing so and backing this up in writing.

However, all employees with at least 26 weeks service can make a ‘statutory application’ for flexible working. Note the word ‘statutory’- this means that any attempt by the employer to prevent an employee from asserting a statutory right could result in an Employment Tribunal claim.

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Aren’t flexible working requests only for employees with young children?

The right to make a request for flexible working did apply only to those with children under the age of 17, or under the age of 18 if the child had a disability but this was repealed in June 2014.

The right to make a statutory application now applies to all employees with at least 26 weeks service, as long as they have not made a request in the last 12 months.

They do not have to tell you why they are making the request either.

Is this a long drawn out process?

No not at all and our experts will of course provide you with the necessary advice and support.

GOV.UK sets out the basic steps in dealing with a flexible working request as:

  1. The employee writes to the employer.
  2. The employer considers the request and makes a decision within 3 months – or longer if agreed with the employee.
  3. If the employer agrees to the request, they must change the terms and conditions in the employee’s contract.
  4. If the employer disagrees, they must write to the employee giving the business reasons for the refusal.

Can I ask the employee to set out how they envisage the company can accommodate their flexible working request because it all seems a bit one-sided?

Yes of course and our experts can provide you with a flexible working application form for your employee to fill out.

As part of that application the employee is asked to set out how they think their flexible working request might affect the business and how the business could overcome any obstacles.

Do I have to have a meeting, and can I put forward an alternative proposal?

Its good practice but if you find that you can agree to the request a meeting may not be necessary.

However, if there is a chance the request can’t be agreed it is better to meet to discuss this. Likewise, if you have a compromise to put forward, a meeting is the best way to do so.

What if I can’t agree to the request and there are no workable compromises or solutions?

You are legally required to show that you have dealt with the request reasonably.

If you genuinely cannot accommodate the request, then you are perfectly within your rights to turn it down and this should be confirmed in writing.

You can turn down the request on any of the following grounds (GOV.UK):

  • extra costs that will damage the business
  • the work cannot be reorganised among other staff
  • people cannot be recruited to do the work
  • flexible working will affect quality and performance
  • the business will not be able to meet customer demand
  • there’s a lack of work to do during the proposed working times
  • the business is planning changes to the workforce

Can an employee raise an appeal if their flexible working request is turned down?

You should offer the right of appeal and where possible it is better that someone other than yourself consider the appeal to avoid any suggestions of bias.

Finally, with the world of work having taken a flexible turn, we are likely to see an increase in flexible working requests. This means that there is also an increase in risk that employers may inadvertently fall sort of their legal obligations. Therefore, it remains as important as ever to seek advice.

Next week– Suspension- when to use it, when not to use it and why it is used.

Please ensure that you seek advice from our experts as there is not always a ‘one size fits all’ answer to a lot of these scenarios and mistakes will be ever more costly for your business in the current climate.

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