Although the path out of lockdown for the UK is now clearer, the vision for our post-COVID-19 work and office lives is less so.
For many, a return to “normal” office working is difficult to imagine and employers across the nation are expecting a surge in flexible working requests from those employees who have either been working from home or have enjoyed a higher degree of flexibility as a result of the pandemic.
As the national lockdown recedes, our employment law specialists take a look at what employers should consider when faced with flexible working requests and how to manage them in accordance with employment law.
Any employee can make a request for flexible working (that is, one to change the hours, times or place of their work). However, it is only those with at least 26 weeks’ continuous service that have a statutory right to make such a request.
When a request for flexible working is made under the statutory scheme, an employer is bound to deal with it in a ‘reasonable manner’ within three months of the request being made as per the guidance provided by Acas.
An employer who does not want to agree to such a request can reject it on one of eight business grounds set out in legislation, which include additional costs, the detrimental effect on the ability to meet customer demand and the detrimental impact on quality or performance.
Historically, finding a business ground to reject a request was not a significant burden for an employer where there was little risk of a discrimination claim (see below). The difficulty now is that many employees will argue that they have proven that home or flexible working has worked well during the last 12-months of intermittent lockdown restrictions, and so employers who want their employees back in the workplace are going to have to find evidence to support any rejection to work remotely on a permanent basis as lockdown eases. Such evidence might include things like complaints from customers that they cannot get hold of employees or that the service they have received, or are receiving, is not as efficient.
Any changes agreed will constitute a variation of the employment contract and should be documented in writing.
An employee whose flexible working request is rejected under the statutory scheme can only bring a claim to the tribunal on limited grounds, which include:
If such a claim is upheld, the tribunal’s only powers are to order that the employer reconsiders the request and/or pays the employee up to eight weeks’ pay capped at the statutory limit.
The bigger risk for the employer is if the rejection of a flexible working request (whether made under the statutory scheme or not) could be viewed as discriminatory.
Refusing a request for flexible working (whether made under the statutory scheme or not) from an employee with protected characteristics under the Equality Act, also brings with it the more serious risk of a discrimination claim.
The most obvious examples are women who make flexible working requests around caring responsibilities (where a rejection might be viewed as indirectly discriminatory against women), or employees with a disability, for whom flexible working might constitute a reasonable adjustment.
While the statutory scheme to request flexible working does not envisage trial periods, it is always open to an employer to agree to one, whether in response to a statutory request to flexible working or one made outside of the scheme. This is something to consider where the employer is reluctant to agree to the request but fears a discrimination claim.
Even though many employees will argue that they have already trialled the arrangement during lockdown, a trial may still be appropriate now as different circumstances apply once the country comes out of lockdown and more people return to the workplace and customers and clients expect a return to normal service.
Although the pandemic has undoubtedly had an irreversible impact upon flexible working, the government had already begun to bring flexible working to the fore with its pre-COVID proposal that employers make all jobs flexible by default, unless there was a good reason not to.
Irrespective of whether this proposal ends up as law, the expected deluge of requests to work flexibly on a more permanent basis as we come out of lockdown means that it is in any event important for employers to now consider both the way that requests for flexible working are handled in the short-term, and how this should be reflected in company policy moving forward.
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