With the end of the furlough scheme, there is no doubt that people might be re-thinking their working arrangements, whether that be working from home or a hybrid between working from home and in the office.
Please note that this note does not cover maternity, paternity, parent or carer requests.
What might a flexible working request look like?
A flexible working request might be to (this list is not exhaustive):
- Reduce/change hours;
- Change a start/finish time;
- Work from home or from somewhere other than the employee’s usual office; and/or
- Share the job with another employee.
The number of people working from home was relatively low until the Covid-19 pandemic. However, many employees are now reconsidering their working arrangements and it is likely that some will prefer the ‘working from home’ arrangements.
Who can request flexible working/work from home arrangements?
An employee has a legal right to make a flexible working request if:
- They have 26 weeks’ continuous service at the date of the request;
- They are legally classed as an ‘employee’ under the Employment Rights Act 1996;
- They have not made a flexible working request in the previous 12 months.
However, some employers will allow an employee to make the request even if the employee does not meet the above criteria. In this scenario, the employee would need to check the employer’s flexible working policy.
Does the request have to be made in writing? If so, what should the letter say?
Yes, a request must be in writing. The correspondence should include:
- That it is a ‘statutory flexible working request’ or that it is an application made under statutory procedure;
- The changes being requested;
- The date;
- When the employee would like the change to commence;
- Any effects that the change might have on the employee’s work;
- Details of any previous requests; and
- Any benefits that the change might bring.
If the change is in respect of a matter concerning the Equality Act 2010, then this should also be included.
What should an employer do when they receive a request?
An employer should review the request in a fair and reasonable manner. They should provide the employee with a decision within a maximum of 3 months (unless the parties agree a longer time period).
The ACAS code suggests that employers should set up a meeting to discuss the request before making a final decision (although this is not necessarily needed if the employer simply intends to approve the request). There is no legal right for an employee to bring a companion to this meeting as this is at the employer’s discretion. Once the employer has made their decision, they will let the employee know. It is recommended that the decision should be confirmed in writing.
What should employers consider in ‘working from home’ or hybrid working requests?
Employers should look at both the benefits and drawbacks of any such requests, which may or may not require a formal application, depending on what policy the employer has adopted.
Benefits may include (this list is not exhaustive):
- Reduced overhead costs as there is less need for expensive workspaces;
- Time saved in travelling/commuting;
- Retaining employees who might otherwise have had to relocate/have family commitments;
- Access to more people in terms of recruitment;
- Increased technology skills; and
- Some employees have advised that their productivity is increased.
Drawbacks may include (this list is not exhaustive):
- Loss of ‘team’ culture and social interaction;
- Difficulties in managing employees remotely as it may be harder to supervise;
- Reduced ‘on the job’ learning;
- Some employees feel that their productivity is reduced when working from home, and
- It can be harder to manage mental health and wellbeing. Some employees may find it harder to separate work life from home life.
Employers will need to consider the practicalities when entering into homeworking or hybrid working arrangements with employees. Employers may need to tailor employment contracts to fit the needs of the request.
Employers need to ensure that any policies are applied consistently and ensure that they do not inadvertently discriminate against employees. Employers not only need to ensure that they do not discriminate when determining an approach to a homeworking request, but also when making changes to any homeworking practices.
Employers also need to ensure that any equipment provided by the employer is covered under their insurance if possible. If this is not possible, the employer should ask the employee to take out satisfactory insurance cover (the employer may decide to reimburse the costs for this).
Can an employer refuse an employee’s request to work flexibly?
Yes. An employer can refuse a request if there is a ‘valid business reason’. Examples of this are listed below (this list is not exhaustive):
- It will have a negative effect on performance;
- There will be a negative effect on the business/the ability to meet customer demand;
- There will be a burden of additional costs;
- There are planned structural changes;
- The employer cannot organise the work amongst other staff or cannot recruit more staff; and/or
- There will be a negative effect on the quality of the employee’s work.
What paperwork is needed if a change is agreed?
If an employer agrees to a flexible working request, this will change the terms of the employee’s employment contract. The change should therefore be confirmed in writing to ensure that there is no dispute as to what was agreed. Any legal changes to an employment contract must be confirmed in writing within one month of the change taking place.
What if the employee disagrees with the employer’s decision?
They can appeal the decision with the employer. This can be done informally at first to enable the employee to explain their view as to why they disagree with the decision.
The employee should check the company policy for how to appeal the decision formally.
If the employee subsequently decides that their request has not been handled fairly, they could raise a formal grievance. Again, they would need to check the company policy on the process for this.
For any advice on flexible working requests, whether you are an employee making a request or an employer responding to one, please contact our Employment Law team.