Home working, hybrid working, blended working are all buzz words at the moment in the flexible working world as we (hopefully) emerge from the COVID-19 pandemic. But what does it all mean? Are employees entitled to new ways of working and what obligations are on employers?
The Contract
The starting point is the employment contract and what it currently says about the employee’s place of work, working hours, home working etc. Sometimes there is flexibility built within these clauses. For example, often a “Place of Work” clause will require employees to work at a specific location but also require them to work at the employer’s other premises or at such other place as the employer requires. Also, check whether there is a clause in the contract which purports to give the employer the power to vary terms of the contract unilaterally? Such clauses are becoming increasingly common but must be exercised reasonably and not capriciously.
The Right to Request Flexible Working
If the contract doesn’t help then an employee should check their employer’s flexible working policy, if it has one, or if not, the employee may rely on the statutory right to request flexible working. Employees who have more than 26 weeks’ service with their employer, and have not made a flexible working request in the last 12 months, have the right to make a request to their employer for flexible working. It is important to note that the employee only has the right to make a request to work flexibly – there is no right to flexible working in itself.
A flexible working request should be made in writing, it should be dated and it should explain the flexible working pattern that the employee would like and the date they would like it to become effective. The employee should also explain the change they think it will have on the business and how that change can be addressed if necessary.
Examples of the types of changes that can be requested are:
- A request to vary working hours (for example a request to work fewer hours or to go part time);
- A request to vary the times the employee is required to work, i.e. to start or finish work earlier or later (or on different days) whilst not changing the overall hours worked. An example could include working in the evenings rather the afternoons (which might accommodate those with small children).
- To work from home or from another location instead of the usual workplace for some or all of working time. This is likely to be a popular request given that many of us have recently shown that we have the technology to enable us to work as effectively at home as we can in the workplace.
Flexible working should not be confused with “flexitime.” Flexitime is an agreed arrangement whereby employees work a set number of hours but there is flexibility regarding their starting and finishing times, often within parameters defined by the employer. The most common arrangement is where employees have to work, say, 35 hours per week, Monday to Friday, but they can work those hours at any time between 8am and 6pm; thus giving flexibility as to start and finish times. Flexitime is therefore a type of flexible working.
Employer’s Obligations
An employer must deal with a flexible working request in a reasonable manner and must notify the employee of its decision within 3 months of the request (although that period can be extended by agreement). Most employers are likely to meet with the employee to discuss the request although this is not strictly necessary. The employer may only refuse the request on one or more “business” grounds specified in the Employment Rights Act 1996, namely:
- The burden of additional costs;
- The detrimental effect on ability to meet customer demand;
- The inability to re-organise work amongst existing staff;
- The inability to recruit staff;
- The detrimental impact on quality;
- The detrimental; impact on performance ;
- Insufficiency of work during the periods the employee proposes to work; or
- Planned structural changes e.g. the employer intends to reorganise or change the business and thinks the request will not fit with those plans.
The grounds for refusing a request are quite wide and in many circumstances it won’t be difficult for an employer to justify refusing a request on one or more of the above grounds. There is no statutory right to an appeal but some employers may offer a right to appeal in their own policy. An employee may only bring a claim in the Employment Tribunal:
- if the employer refuses the request for a reason that is not one of the eight reasons above;
- where the employer has failed to deal with the request in a reasonable manner;
- where the employer failed to notify the employee of its decision within the 3 month period; or
- where the employer’s decision to reject the request was based on incorrect facts.
If the request is granted, it takes effect as a permanent variation of contract (unless specified only to be temporary) and should be confirmed in writing.
As we emerge from the pandemic, employers should anticipate that employees who have become comfortable working from home or who have become accustomed to dropping off and collecting children from school may make requests for flexible working. If these requests can be accommodated then why not? You will get the most from your employees if they are happy with their work/life balance.
If you would like to discuss flexible working or any other employment law matter then do please drop me a line: slomas-fletcher@jacksons-law.com or give me a call on 0191 814 9699.
Sally Lomas Fletcher, Associate – Employment Law
