Now people are confident that they can get the job done at home, there is an increase in employees requesting flexible working. The nation has become so accustomed to working from home, that many now dread the return to full-time office working. The government recognises this challenge to traditional working structures, and has set up a flexible working task force to establish if laws should be updated.
Any legal changes which enshrine the right to work at home are considerations for the future. Right now, many employees are asking what are their rights regarding flexible working if their employer demands a return to the office?
This blog outlines the current legal rights to working flexibly.
Flexible working isn’t new
The right to request flexible working was introduced in 2003 to help parents and carers manage family and caring responsibilities alongside work. In 2014 this right was extended under The Flexible Working Regulations 2014 to all workers (not just parents and carers) giving employees the right to request flexibility in their work schedule.
But despite its longevity in statute, just prior to the pandemic, flexible working was the exception, not the norm. Even during the pandemic (apart from enforced homeworking), research by the Chartered Institute of Personnel and Development (CIPD) confirms a low uptake of flexible working arrangements.
But the shift to hybrid working could change this. As employees get used to the new regime of working partly in the office and partly remotely, they may look for more specific adjustments to make the arrangements a good fit for them.
There is no real reason for employers to reject this since the technology barriers previously preventing remote working have now been overcome.
What is flexible working?
The government defines flexible working as “a way of working that suits an employee’s needs.”
This could be, for example:
- having flexible start and finish times (sometimes known as flexi-time)
- working from home or elsewhere (remote working)
- a reduction in hours to work part-time
- a change to start and finish times
- doing more hours over fewer days (compressed hours)
- sharing the job with someone else
Why have flexible working?
Flexible working helps people balance work with responsibilities. It keeps more people in long term employment and enables companies to retain top talent. And remote working gives employers a much larger talent pool to recruit from.
It also enables employers to recruit from multi-generations. Older people who are already retired or those thinking about retirement can work fewer hours. Parents and carers can build work around their caring responsibilities, such as school drop-offs and pick-ups. And it enables people of any age, but particularly young people, to combine work with study.
As we come out of the pandemic and employers balance the needs of business with those of employees, flexible working will feature as an important stepping stone at the very least. It will help enormously in the re-integration of furloughed staff as businesses get back on their feet.
Who can request flexible working?
Any employee can request flexible working, not just parents and carers. But only employees who are eligible have a legal right to request flexible working. This is known as a statutory request for flexible working.
For an employee to be eligible/have the right to request flexible working they must:
- Be employed with the same employer for at least 26 weeks
- Be legally classed as an employee
- Not have made another flexible working request in the last 12 months
Employees who aren’t eligible can still make a request, but it would be considered non-statutory. This means the employer is not bound by the rules of a statutory flexibility working request. A non-statutory request can be formal or informal and may be a more appropriate option for an employee if the change is only minor or temporary, especially since an employer has up to 3 months to approve a statutory request.
How do employees exercise their right to flexible working requests?
A flexible working request must be made in writing. This is known as a flexible working application. Only one request for flexible work arrangements can be formally submitted in each 12-month period. If an employee submits a request, say on the 30th June 2021, they wouldn’t be able to apply for further changes until 1st July 2022.
The letter must include specific information, such as when a previous application for flexible working was made, what the employees current working pattern is, and what they would like their new pattern to be. The letter should also explain how the change in working hours or location will impact the business and what can be done to mitigate any potential issues.
Ultimately, an employee needs to explain why they need to change their working arrangements and reassure their employer that it won’t affect productivity or have a negative impact on other employees.
Employers should ideally have a flexible working policy, which explains the procedure for applications and provides a template or sample letter.
What’s the difference between a statutory and non-statutory request?
Citizen’s Advice layout the advantages and disadvantages in an excellent table on their website.
Can an employer refuse a flexible working request?
In accordance with the law, employers can refuse an application for flexible working where they have considered the request in a reasonable manner. But they must prove a genuine business reason for rejecting any request.
Genuine reasons a request for flexible working hours might be refused can include:
- Would incur additional costs to the business
- Unable to reorganise work amongst existing staff
- Unable to recruit additional staff
- Would have a negative impact on performance and productivity
- Would adversely affect the employee’s ability to meet customer demand
- Would be detrimental to quality of work
- Proposals don’t suit workflow
- Proposals don’t fit with planned changes to the business
An example request
In a team of three full-time administrators, one asks to work 4 days per week. The workload has been high amongst the team.
There are a number of considerations for the employer when looking at this flexible working request.
- What cover is required?
- Can the team absorb a reduction in working hours?
- How easy would it be to recruit an additional part-time employee?
- The costs of recruitment
- The impact on the team
The manager could ask the team for feedback on how this would affect them and the workload. With workload high it is unlikely the team could cover a whole day’s work for one employee. Other considerations might include whether or not the employee requesting the change could work from home one day each week instead. Or would compressed hours be a solution rather than a reduction in hours? Or if workload is high and due to increase in the future, is now the time to recruit an additional employee.
Now is the time for organisations to increase their flexible work offerings
The pandemic has been a huge disrupter to the business world and hugely unsettling for employees. As employees return to the workplace, focusing on individual needs will be critical for maintaining an engaged workforce. Despite the vaccination rollout, safety concerns are high. A tailored approach is needed when bringing employees back in the fold. But this can only be achieved with a strong communication plan and a robust understanding of the individual needs of employees.
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