Working Flexibly – not a statutory right

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Flexible Working

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Coronavirus has changed the way we work and millions of people have been working flexibly or working from home over the last few months. Job roles that we probably never thought would lend themselves to working flexibly and/or at home have been done very successfully away from the office core hours.

For years, we have seen compelling arguments about working flexibly and why employers should allow their employees to do so and how technology enables employees to have flexible patterns of work. Enter coronavirus which quickly forced the issue.

Although working from home has been a huge success for some industries, it only works for certain roles. Jobs in manufacturing, distribution, retail, cleaning, catering, hospitality, tourism etc simply cannot be done from home.

It should be remembered that there is no statutory right to work flexibly or from home. Employees have the right to request to work flexibly, which is totally different to a statutory right and the employer has the right to say no.

As a consequence of Coronavirus, it is reasonable to expect that employers are going to face numerous request from employees to work flexibly and/or from home and many of those employees will be able to demonstrate that they worked flexibly for the last 4 months.

As stated already, in some businesses flexible working is difficult but in others, it is easier to accommodate flexible working. If there are more people, it is easier to arrange cover around larger numbers. In SMEs, it might be more challenging because an office or department may only have a small number of people, cover is much more difficult to manage around normal working hours and there may be recruitment challenges to fill the gaps.

One of the most common instances of flexible working requests is around women returning to work after maternity. For a whole host of reasons, mainly around the cost of childcare, they want to return on reduced hours, fewer days or even agree a work from home option.

In many cases, it suits both employer and employee to mutually agree a flexible working plan but in the event that it cannot be agreed, the employee must make a formal request and the business is permitted to say that they are rejecting the request but there must be clear “business grounds” on which that decision is based.

Business grounds must relate to one or more of the following:

  • Burden of additional costs
  • Detrimental impact on ability to meet customer demand
  • Inability to re-organise work among existing colleagues
  • Detrimental impact on quality
  • Detrimental impact on performance
  • Insufficiency of work during the periods the employee proposes to work
  • And planned structural changes.

Whilst it may sound simple to just turn down a request on one of these grounds, it is not quite that straight forward because the business must be consistent in their approach and also be mindful of claims of discrimination and/or victimisation.

The old argument that it just “won’t work” is going to be more difficult to defend because the last few months have seen entire offices close and groups of employees work from home. Some employers are probably now even questioning the cost of their office accommodation and the savings they could realise if they allowed more employees to work from home.

In most cases, flexible working is based around different or reduced hours – whether that manifests itself in fewer days, shorter hours, later start, early finish etc… In some cases, working flexibly can involve agreement to work from home a few days and technology certainly facilitates this.

The massive increase in the use of Zoom and Teams has shown that work can be done remotely and there is no cost in either time or money, getting to meetings. Travel time is unproductive and six months ago, the notion that redundancy consultations would be done remotely would have been condemned as cold and impersonal but Coronavirus has changed this.

There is also the argument to say that companies are compromising their ability to recruit and retain the best talent if they do not take a more enlightened and forward thinking view about flexible or home working.

So what does the future look like as far as flexible working or working from home is concerned?

More employees will want to do it and in many cases, they will reach sensible agreements with their employers and everything will work out well. But there will also be an increase in employees making formal requests for flexible arrangements and such requests may be more difficult to refuse where the employee can show that flexible working has worked successfully during Coronavirus.

Where such requests are made, companies are advised to give these careful consideration and they can still refuse such requests but it is important that the refusal is based on sound business grounds. It is reasonable to assume that where an employee request is refused, they may appeal the decision, invoke the grievance procedure or in extreme cases, resign and claim constructive dismissal although that would be a high risk strategy.

You can also anticipate that comparisons will be made with how situations have been managed in the past. Whilst every situation must be taken on its merits, consistency of approach is important to prevent accusations of favouritism or unfair treatment – possibly based on discrimination.

Nonetheless, it is important that the employer is able to show that the request has been given fair consideration, a reasonable process has been followed and the refusal of the request can be justified on business grounds.

The drive towards flexible working and home working is going to gather momentum and in many cases the perfect solution is that both parties can agree a solution that is mutually acceptable.

But be reminded, it’s not a statutory right – the employee only has the right to request to work flexibly and let’s not forget, the employer reserves the right to say no.

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