There has been considerable talk about flexible and home working for many years but Coronavirus has brought this subject into sharp focus with hundreds of thousands of people either working flexibly or from home over the last 12 months.
What do we mean by flexible working?
Flexible working is a pattern of work or specific working arrangement and can take many forms
- Working from home – the employee’s normal place of work is their home and they ordinarily work from home
- Reduction in hours or days – the employee may have always worked 40 hours a week or 5 days a week but they request to reduce their hours or days
- Compressed hours – the employee works the same number of weekly contracted hours but they want to compress the hours into fewer days
- Job sharing – typically, 2 employees on a part-time basis share a job that would otherwise be done by 1 full-time person
- Matching hours to school hours – the employee works hours around school drop off and pick up times, for example, 9.15 am until 3.00 pm
Can an employee request flexible working?
Yes – an employee has the right to request flexible working. But, the employer does not necessarily have to agree to the employee’s request.
Many requests for flexible working are dealt with quite informally between employer and employee because the employee’s proposals are acceptable to the employer and the nature of the work done by the employee lends itself to flexible working.
What factors should be considered when agreeing to home working?
Not all job roles can be done from home – for instance, Retail, Manufacturing, Engineering, Process, and assembly, etc – and all working from home requires a level of trust between employer and employee.
The following should be considered when an employee is allowed to work from home
- Health and Safety – the employer still owes the employee a duty of care so many Companies carry out a home working risk assessment
- Reimbursement of costs – is the employer going to reimburse the employee any costs when working at home – eg. wi-fi, telephone, utility bills, cost of furniture (e.g. desk and chair for working at home and a printer)?
- Insurance – are there any insurance implications if the employee works from home?
- Confidentiality – is data security or commercial confidentiality compromised?
- Business mileage – if the employee goes out on company business, can they claim mileage from their home?
Can a business refuse a request for flexible working?
Yes – in most cases. But, it is important that any request is given reasonable consideration and the refusal must be directly related to one or more of the following
- The burden of additional costs
- Detrimental effect on the ability to meet customer demand
- Inability to re-organise work amongst other staff
- Detrimental impact on quality
- Detrimental impact on performance
- Insufficiency of work in the periods when the employee proposes to work4
- Planned structural changes.
The last 12 months have seen hundreds of thousands of employees working flexibly and also from home and many of these arrangements have worked very well. Also, job roles which previously might have been regarded as unsuitable for home working e.g. Call Centres, Helpdesks, etc. have demonstrated that they can work from home successfully.
So, employers should not just reject a request for flexible or home working for the sake of it and must give any request reasonable consideration.
What are the pitfalls of refusing a request for flexible working?
The employer must be consistent in their approach because otherwise there is a risk that the employee will have grounds to argue that they have been treated unfairly or that the employer has shown favouritism in allowing some requests but not others. Similarly, it is very important that requests are given full consideration in respect of employees returning to work after maternity leave as well as employees with;
- specific health conditions e.g. MS, Arthritis, Cancer
- mental health issues
- specific cultural or religious issues
- caring responsibilities
It is possible that if an employee’s request is refused, the Company could face a discrimination claim on the basis of one of the following – sex, race, age or disability.
Is there a procedure for an employee to follow?
Most requests for flexible working are dealt with informally but there is a formal process for an employee to follow which commences with them making a written request setting out their proposal. This should give details of their request – i.e. to work from home or to reduce days or hours.
The employer is obliged to meet with the employee to discuss the request and at this meeting, the employee should be allowed to be accompanied by either a trade union representative or a work colleague.
The employer should write to the employer to either advise that the request has been agreed or to advise that the request has been rejected and the business grounds for that refusal.
The employer should also give the employee the opportunity to appeal against the decision if their request has been refused.
It is likely that through a process of consultation, the employer and employee will decide on a solution that works for the employee and meets the operational needs of the business. A mutually agreed solution is always preferable because the formal process can be costly and time-consuming and can get acrimonious.
How can an employer avoid ending up in a Tribunal for turning down an employee request for flexible working?
If an employee wants to take the case to Tribunal, the employer’s chances of success will be greater where they can demonstrate the following
- they followed a clear process in considering the employee’s request
- their reasons for refusing the request were based on specific business grounds
- they gave reasonable consideration to the request and explored various other options with the employee that would have been workable
- they gave the employee the opportunity to appeal the decision
- they dealt with other requests in a consistent way so that they can avoid allegations of favouritism
Finally, put it in writing…
If employer and employee agree on a flexible working arrangement, it is important that this is confirmed in writing and if necessary, issue the employee with a new contract so that there is no confusion and it avoids disputes further down the line.
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