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Tina Chander on flexible working

As working life steadily returns to normal after the pandemic, one difficulty already causing headaches for employers is the desire of many employees to continue a more flexible approach to their work.

Whilst it is unlikely to be feasible for employers to agree to every such flexible working request, businesses must consider each request on its own merits.

The first consideration for an employer is whether the employee is eligible to make a formal flexible working request.  Where the request is made by an employee, who has at least 26 weeks of continuous employment and has not made a formal flexible working request during the last 12 months, the employee will be entitled to make a request.

Firstly, it is important to note that any request for flexible working must be made in writing so there is a written record of this, email being just as acceptable as a written letter.  The flexible working request should, for clarity, state that it is a flexible working request and that the employee meets the eligibility criteria, explain the reasons for the request and provide any other information in relation to the desired working pattern.

Flexible working requests can be wide ranging, but will usually cite one or more of the following as the reason for the request:

  • Change their work location
  • A reduction or variation of the days the employee works
  • A reduction or variation of working hours

Having received a request, the employer must deliver an answer within three months, allowing time for the individual to submit an appeal if the decision goes against them. This time can be extended by mutual agreement.

There will inevitably be circumstances where employers cannot accommodate a flexible working request; an outcome which may become more necessary if numerous requests are being received. However, employers must remember that they can only refuse a flexible working request for one or more of the reasons detailed in the legislation:

  • Additional costs associated with change will impact the business
  • The changes will make it more difficult to meet expected customer demand;
  • The inability to redistribute work among colleagues;
  • The inability to hire new staff to fill gaps left;
  • Service quality will be negatively impacted by changes;
  • Performance of the business will be reduced by any change;
  • Lower demand at the times the employee wants to work; and
  • The business is already planning changes to the workforce.

Again, this decision should be communicated in writing, with an explanation as to the reason(s) for refusal of the request and the option for the employee to appeal the decision.
In the post-lockdown working world, many employees will be keen for their employers to adopt a long-term culture of flexible working, which they will inevitably argue has now been proved to be effective with minimal impact on business productivity.

However, whilst trying to accommodate genuine requests, dividing a workforce in more ways than one, can be a problem. It is important to consider the impact of having some workers at home and some in the workplace, as it can cause a disconnect between colleagues.
As the workforce leaves lockdown with a very different approach to  the work/life balance than when it went in, employers must prepare for the inevitable requests for flexible working and seek to compromise where possible.

Tina Chander is a Partner and Head of the Employment team at leading Midlands law firm, Wright Hassall.  W: https://www.wrighthassall.co.uk
T: 01926 884687  E: [email protected]

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