Curb your (flexible working) enthusiasmplradwellon November 3, 2021 at 3:45 pm Employment and discrimination blog


Businesses are preparing for the new post-pandemic era where some form of return to office is very much front of mind. Although it would be a brave company to request a full-blown return to office five times a week so soon after the lifting of restrictions, we are seeing a much more proactive stance being taken where as much of “normal office life” as possible is being encouraged and implemented.

The pandemic has driven a wedge between the employee’s ideal working pattern and what the business demands of its employees. How long this wedge will continue remains to be seen, but for now this difference means only one thing: if staff do not like the new return to office rules, they will raise a flexible working request.

This might come in various forms, such as working at home for longer periods to varying the working hours or requests to work from home full time as they have done during most of the pandemic.

Is a day-one right a good idea?

Broadly, for any variation to the existing working pattern (whether as to time or location), the employee would need to make a flexible working request. A request can only be made by an employee (not consultants or agency workers) who has:

Been employed continuously for 26 weeks at the time of the request.
Not made a flexible working request in the preceding 12 months.

The request must also meet the prescribed requirements as set out under section 80F(2) of the Employment Rights Act 1996 (ERA 1996) and regulation 4 of the Flexible Working Regulations 2014 (SI 2014/1398).

If the current government consultation on flexible working becomes law, then the requirement to wait for six months before becoming eligible to apply will be removed. In the present climate, anyone applying for a new role may look to negotiate some form of flexible working (including, most popularly, home working for at least some of the week) as a condition of joining. This means employers are having to negotiate flexible working pre-employment, so a day-one right is not as dramatic as first envisaged.

What are the employer’s obligations?

If the employer intends to accept the flexible working request in its entirety, formal procedures become moot. However this is unlikely in many cases, which means it will need to follow the minimum procedural steps. The employer must:

Deal with the request in a reasonable manner.
Notify the employee of the decision within the decision period of three months.
Only refuse a request based on one or more of the statutory grounds.

(Section 80G(1)(b), ERA 1996.)

Requests should be dealt with in a reasonable manner, including meeting with the employee to discuss the request and allowing the employee to be accompanied to such meetings by a colleague or trade union representative.

Although appeal is not part of the statutory requirement, it is strongly advised that the employer provides an appeal procedure if rejecting the request. Allowing the employee to appeal and meeting with the employee to discuss the reason for the rejection will go towards the reasonableness requirement.

Match-up between the request and the company

The central argument consistently run by employees is that they have worked well during the pandemic, so why can this not carry on? The starting point is what the employer’s current policy is on returning to work. Since the lifting of restrictions on 19 July 2021, most employers have implemented hybrid measures where anything between 20% to 80% of the time is spent at home and the rest at work, depending on industry and sector.

The reality for most employers is that any further variation to their current policy will have to be dealt with strictly and consistently, so that flexible working does not run wild. To do this, employers will have to carefully balance the two factors: statutory grounds for refusal, on the one hand, and risk of inviting (primarily) a discrimination claim, on the other. (Failure to deal with the request itself can result in a compensation award of up to eight weeks’ pay by the employment tribunal.)

One of the core principles to draw out from case law is to avoid rejecting on technical grounds (for example, because the employee did not date the request), as doing so could invite other more serious claims (other than the failure to follow the statutory procedure) such as discrimination or constructive dismissal (or both). Requests on health grounds should also be considered carefully.

Whose side is the law on?

The current statutory regime for refusal (as well as the decision period) does give employers plenty of room for manoeuvre, but it is important to accurately record the factual bases for rejecting a request. What the employer wants to avoid is to allow the request on hearing an appeal because it did not properly investigate the facts. Bear in mind that until a decision is made either way, the employee is required to work in line with their pre-existing contractual provisions.

Another issue to consider is trial periods. There is no statutory obligation to offer a trial period, but the employee may argue that it was unlawful not to. If the employee requests a trial period but the employer decides otherwise, it is advisable to explain the reasons in the decision letter. If the employer can support its reasons with one of the statutory reasons for refusal, then all the better.

Employment and discrimination blog

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