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Flexible Working Continued – HR Considerations

Last month, my Health & Safety colleague shared information about the ways in which we can keep employees safe whilst working at home, particularly as ‘hybrid working’ looks like it is here to stay. Whilst many companies introduced hybrid or flexible working as a direct response to the Government guidance on Covid, employees have now become used to this arrangement and there are many who would like to see it continued.

From a company perspective, there are a wide range of views out there, ranging from companies who are embracing hybrid and flexible working in its widest form, to those who feel that it is not effective and who want their employees to return to work on a permanent basis (or at least attend the workplace more frequently).

Whatever your view, employees have the statutory right to submit a flexible working request on an individual basis, providing they have worked for the business for a consecutive 26 weeks and businesses have a duty to consider them in a ‘reasonable manner’ and accept/reject the request within a 3 month period. (Not to be confused with flexible working policies that are decided by the business and applied across the company).

When it comes to individuals making a flexible working request, you should be aware that although the legislation allows for you declining such a request, it does need to be due to  one of the following specific reasons:

  • extra costs that will damage the business
  • the work cannot be reorganised among other staff
  • people cannot be recruited to do the work
  • flexible working will affect quality and performance
  • the business will not be able to meet customer demand
  • there’s a lack of work to do during the proposed working times
  • the business is planning changes to the workforce

Please note that failure to follow a proper process or declining a flexible working request for reasons other than those listed above  could lead to an employee making an employment tribunal claim with the maximum compensation awarded being eight weeks’ pay (capped at the statutory maximum, £544 per week). This would equate to a maximum of £4,352.

One of the greater risks in regard to this subject, really lies in the potential link to alleged ‘discrimination’ and the need to consider reasonable adjustments in some cases.  Often when employees make flexible work requests it is due to a change in their circumstances. This could be a childcare issue or relate to family members illness etc or be as a result of a deterioration or impact in someone’s health or a medical condition. Therefore, before declining a request it is important to discuss and understand the reasons that an employee has made the request and to identify whether those factors require the employer to make ‘reasonable adjustments’.

A good example of this was a recent case involving a new mother who submitted a flexible working request. The business refused to consider her request and the tribunal found that not only had the employer breached the legislation surrounding flexible work requests but also were guilty of indirect discrimination based on the employee’s sex. The employee was awarded £185,000 in damages.

It is worth clarifying that this doesn’t mean a business needs to agree to a flexible working request in all cases, however every flexible working request needs to be considered on its own merit and employers should use one of the outlined reasons with a business case if they decide to decline a request and make it clear to the employee as to the reasoning behind their decision. We would always recommend trying to find a solution that works for both parties, even if the request cannot be accommodated in its entirety and in cases where reasonable adjustments are required to be considered, we suggest that you take advice before making your decision.

Finally, the Government is currently deciding whether legislation should be passed which would grant all employees the right to put in a flexible working request from their first day of employment.

If you would like discuss this area of people management, or any other HR matter, please contact our team on 01302 341 344  /  0114 243 9914.

By Kris Kerins BSc (Hons) Assoc CIPD  |  HR Business Partner  |  CQI & IRCA ISO 9001: Lead Auditor

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