The start of lockdown was effectively the biggest flexible working procedure we have ever witnessed. Since 2014 employee have been requesting to work from home or reduce their working hours...and all it took was a global pandemic to make it happen!
The problem is, now that everyone has been working remotely or flexibly for a good 6 months, it's going to be very difficult for employers to decline a flexible working request. But here's a little guide as to how you can manage them if they do come up.
THE INS AND OUTS
The Flexible Working Regulations 2014 allows eligible employees the right to request flexible working. There is no guarantee that the request will be granted.
Flexibility requested can be in terms of the start/finish times, place of work or hours of work.
If the request is agreed, it forms a permanent change to the terms and conditions of that employee and the employee has no automatic right to revert to their original arrangement.
ELIGIBILITY
To be eligible to request flexible working, the individual must be an employee with at least 26 weeks' continuous service at the date of the application and must not have made an application within the last 12 months. This includes part time or fixed term employees but doesn't include agency workers, contractors or consultants.
APPLICATIONS
To make an application, the employee must submit a proper application. You might want to have a template form for employees to complete to make life easier.
The application must state it the nature of the request, be dated, give the date the employee would like to start flexible working and demonstrate that the employee has given due consideration to the impact of their flexible working on their colleagues and the business.
They must also declare any previous applications made - but if you've done things right, you'll have a record of this anyway.
ACCEPTING AN APPLICATION
If you are happy to authorise the request straight away, you can write to the employee to confirm the change is agreed and when it takes effect. It must be confirmed in writing as you are making a change to the terms and conditions of employment. You could have a meeting about it if you wanted to, just to confirm everyone understands the process and the request in full.
Remember that if an employee is requesting to reduce their working hours, this will impact their salary, holiday entitlement and pension contributions.
REJECTING AN APPLICATION
If you're not in immediate agreement with the request, you should arrange a meeting with the employee to discuss the matter as soon as possible. The employee may be accompanied at the meeting but it isn't a legal requirement. The purpose of the meeting is to overcome any concerns you might have about the request and explore whether a compromise might be reached.
After the meeting, you need to write to the employee within 14 days giving your decision. If you reject the application, you will need to give your business reasons for this. Business reasons for refusing an application can only be based on the following grounds:
burden of additional costs
detrimental effect on ability to meet customer demand
inability to reorganise work among existing staff
inability to recruit additional staff
detrimental impact on quality
detrimental impact on performance
insufficiency of work during the periods the employee proposes to work
planned structural changes
The employee has the right to appeal the decision and your usual appeal procedure should be followed.
TRIAL PERIODS
You can, if you wish, agree a trial period to see how the flexible working pattern works in practice. You should confirm to the employee that the trial is exactly that and confirm what will happen at the end of the trial period. Confirm how you will determine whether the trial has been successful.
WITHDRAWALS
Employees are able to withdraw their applications either verbally or, the employer can consider the application withdrawn if the employee fails to attend any meetings without good reason. When a request has been withdrawn, the employee may not make another for 12 months.
POINTERS FOR EMPLOYERS
When handling flexible working requests, as with any other employment matter, you must ensure you are acting reasonably and can justify any actions you take.
Specifically, you need to give reasonable and timely consideration to the employee's request before declining. You should ensure that any declined request is based on one of the business reasons and that you have evidence to support that decision. Using the reason "burden of additional costs" when you have £1m in the bank (chance would be a fine thing!) won't fly with a tribunal.
You should also ensure your decision is based on the facts. A tribunal will eat you for breakfast if you didn't take the time to get all the facts before making a decision! And who wants to pay £4304 in compensation for a poor flexible working decision?
Now then, some more red tape for you to navigate...
Employees also have the right not to be subject to detrimental treatment as a result of flexible working. In English - employees have the right not to be treated badly just because they made a flexible working request.
So if you dismiss an employee because they made a flexible working request - it will be automatically unfair and you'll be served up to a tribunal judge for breakfast.
You also have the risk of constructive unfair dismissal claims if flexible working procedures are not handled correctly. That's when you commit a serious breach of the contract and it causes the employee to resign. Not good.
Now, a HR blog isn't a HR blog without mentioning the big D...Discrimination!
Discrimination happens when a person with a protected characteristic is treated less favourably than someone without that characteristic. For example, if an employer rejected a man's request for flexible working because it was made by a man, whereas women's requests are treated more favourably, this could turn into a claim for direct sex discrimination.
There's also a really interesting side to discrimination that most people don't think about - indirect discrimination. This is where the employer puts a provision, criterion or practice in place that puts people with a particular protected characteristic at a disadvantage. For example, a requirement to work a particular working pattern might interfere with worship times for a particular religion.
Don't freak out about all this though - I'm telling you because it's my job to make you aware of the risks. If you have a policy and procedure in place and you follow it applying our values: fairness, consistency, transparency & standards with an extra dose of reasonableness - you're all good.
If you'd like to talk more about flexible working - get in touch!