Flexible working arrangements include part-time working, flexitime, and job-sharing. An increasingly popular flexible working trend is that of ‘hybrid’ working, which affords an employee the right to work both in the workplace and at a remote location, such as their home. Employees have a right to request flexible working, and requests are becoming increasingly common as we move to the ‘new normal’ post-pandemic. The BBC recently reported that most of the UK’s 50 biggest employers do not intend to insist that employees return to the workplace full time, instead offering a mix of home and workplace working.
Eligible employees (those with 26 weeks continuous service) have a statutory right to request flexible working once every 12 months. Requests must be dealt with reasonably and within three months from the date it was made.
Employers who receive a request should ensure:
• It is acknowledged in writing
• All relevant eligibility criteria are considered
• The employee is invited to provide further information to help their case
• the employee is invited to a meeting to consider the request (and be accompanied by a colleague if requested)
• That the request is considered on an individual basis
• That the final decision is communicated clearly and without undue delay and in writing.
Employers should also be aware that requests to work flexibly – especially from home – can be made on an informal basis. It is important that employers also treat these requests reasonably.
You can find Acas’s Code of Practice on handling requests to work flexibly here and many businesses have their own policies.
Flexible/hybrid working policies are recommended to accommodate both statutory requirements and other arrangements specific to the business. Effective policies and procedures can help to ensure requests are dealt with in a coherent and uniform manner. The requests can be refused, but for limited and legitimate business reasons, such as customer demand or ability to re-distribute the work.
Any flexible working policy will need to include the statutory scheme at least, but can also include provisions for those who fall outside of the formal right to request.
Employers can also consider implementing a specific hybrid working policy, covering hybrid working on a discretionary basis, without the need for a formal request to be made. This simpler approach could limit the amount of statutory flexible working requests made.
It may also be worth including a reciprocal ‘opt out’ clause for arrangements, giving employees a chance to move back to the workplace as and when requested, as well as a review period in which changes can be reverted if not working as well as planned.
Where flexible working requests are agreed, this may constitute a change in an employee’s employment contract. Therefore, an employer will need to ensure that the terms of the contract are varied accordingly. See our summary here.
A refusal to allow flexible or hybrid working could amount to indirect discrimination in certain circumstances. For example, the requirement for a disabled person to be in the workplace may disadvantage them. Additionally, employers need to ensure part time workers are not treated less favourably than full time workers with comparable roles.
For an employee, it is easy to get carried away with the possibilities of flexible and hybrid working arrangements. Therefore, it is important for employers to consider the full practicalities.
It is therefore, worth bearing in mind the following:
• Suitable roles and type of work that could be performed outside of the workplace, including confidentiality considerations
• Performance management, learning and development of staff
• Cybersecurity, especially with regard to confidentiality, tech infrastructure and data sharing
• The long-term implications: employees may be difficult to persuade back to a workplace environment, therefore any decisions need to be made carefully and in line with the business’s ambitions.
• Including a timescale for regular reviews, making it clear the reasons why changes may be requested if the new working pattern is unsuccessful.
It is important to be aware of the potential issues and seek advice if necessary. For tailored advice or guidance, please contact our employment team by emailing [email protected] or by calling 01635 508080.