The pandemic has set a new precedent for how we work, with many employers already receiving an influx of requests for remote and flexible working.
While there is currently no legal right for employees to work from home, the Government is planning a review later this year to examine an expansion of employee rights regarding flexible and remote working.
With an official spokesperson for Boris Johnson claiming the consultation will consider making flexible working a default option, it is important for employers to be aware of their current legal obligations should an employee make a request to work flexibly.
How should you respond to a flexible working request?
Any employee who has been with the same employer for 26 weeks has the right to request flexible working arrangements once every 12 months. This is a statutory right under the Employment Rights Act 1996.
A request of this nature must be outlined in writing, with specific details of the change in working conditions they are seeking, and the date such a change would come into effect. Upon receiving the request, an employer must deal with it in a reasonable manner, notifying the employee of the outcome, including results of any appeals, within a three-month period.
Employers have the right to reject flexible working requests but, may only do so under one or more of eight statutory grounds. These include any detrimental impacts such arrangements might have on work performance or the ability to meet customer demand, as well as the burden of additional costs this might place on the business, or an inability to recruit additional staff or reorganise work amongst existing staff.
Handling requests in a reasonable manner
While an employee cannot take their case to an employment tribunal simply because their request was denied, they may do so if their request was not handled in a fair and reasonable manner.
A rejection based on incorrect facts and data, or mistakenly treating an application as withdrawn are both grounds for a tribunal hearing. Employers should be aware that dismissal or poor treatment arising from a request for flexible working, such as being denied a promotion or pay rise, could mean an employee has the right to complain to a tribunal.
Currently, there is no statutory right for an employee to appeal a decision on their request, but providing an appeals process is one way an employer can demonstrate their commitment to handling flexible working requests in a reasonable and fair manner.
Employers should always ensure they are in accordance with their own flexible working policies, and are in compliance with the Acas code of practice on handling in a reasonable manner requests to work flexibly.
Managing flexible working policies
As requests for flexible working become more commonplace, it is necessary for employers to consider the wider impact of any flexible working policies they may choose to implement in their business.
Poor implementation of these policies that result in certain groups being unfairly prejudiced can easily give rise to a discrimination claim. For example, women may be less likely to accommodate certain working arrangements due to childcare responsibilities, meaning employers must take into account the responsibilities and constraints that might impact employees’ ability to work flexibly.
Flexible working opportunities should likewise be extended to non-office-based roles to accommodate those unable to work from home. Other forms of flexible working such as job sharing, flexi-time or working part-time avoid creating a two-tier workforce.
It is also important for employers to ensure that certain employee rights are still upheld even when working flexibly or remotely, including equal treatment and access to the same promotion and training opportunities as their office-based counterparts.
While it remains to be seen whether flexible working will indeed become the default position, the impact of the pandemic has undoubtedly paved the way for different approaches to work, and a need for flexibility in many cases. It is vital, therefore, that employers are prepared for this potential shift, and understand the rights and obligations they have when dealing with requests to work flexibly.