Even as new cases spike, there remains growing pressure from the Government for employees to return to the workplace. However, recent polling suggests that a large number of employees would prefer to continue to work from home, in some cases 100% of the time.

In this article we consider the potential effect of the lockdown on flexible working requests. 

Flexible working request

All employees with more than 26 weeks’ continuous service have the right to make a formal request for a flexible working arrangement.  The request must include certain specified details and could, for example, be for flexitime hours, part-time hours or to work from home.   

The request must be properly considered, but it can be refused if there is a good business reason for doing so.  There is a specified list of good business reasons for this, including that the employer would incur extra costs that would damage its business, the employer would not be able to meet customer demand or if the changes would affect quality or performance.   

There is also a risk that an employee could be discriminated against in the way their request is dealt with, either if their request is refused for a protected reason or if a rule is applied that adversely affects a particular category of employee.

It may also be advisable to take care in considering an informal request for a flexible working arrangement, regardless of the employee’s length of service. 

Before responding to the request, check if there is a flexible working policy in place, as this may dictate steps you need to take in responding to it.  However, first check that the policy is up to date and legally compliant.


Potential influence of the lockdown

During the lockdown, a large number of employees worked from home. Many employers and employees have embraced this, without facing issues with reduced productivity.  Alongside increased productivity in some case, employee wellbeing is improved, with cited examples including an increase in productivity as employees work rather than spending 1-2 hours commuting to work.

It therefore comes as little surprise that in recent polling, employees have largely voted in favour of working from home at least some of the time after the lockdown and there may be pressure on employers to accept these requests.

Some employers have expressed concern that there might be an influx of flexible working requests to work from home permanently, and these might well be more difficult to refuse following the lockdown.   However, each case should be decided on its own individual merits and employers can prepare for this by taking steps including:

  1. proactively introducing a home and workplace based offering, with minimum requirements incorporated regarding time in the office. This will ensure consistency of treatment rather than dealing with numerous requests for largely the same or similar flexibility;
  2. reviewing and potentially updating your existing policies on flexible working requests and homeworking, or preparing such policies
  3. keeping up to date in relation to the Government’s guidance on working from home, including in relation to those who are clinically vulnerable or clinically extremely vulnerable and those who care for them as may apply as the pandemic develops;
  4. considering in what order to consider any such requests.  This may well be on a first come first served basis.  

As always, particular care should be taken to make sure that the decision is not tainted by discrimination or other unfairness.

There are undoubtedly benefits in employees regularly working together in the workplace and most employers would rather that their staff work together at least some of the time. Whilst employers and employees alike have adapted to mass home working, in person collaboration cannot be fully replaced by technology. In turn, this could hinder the development of newer and less experienced employees. Accordingly, whilst increased flexibility has necessarily been embraced, employers should take care to strike a balance between the competing benefits and drawbacks of home and office working.

Further, at the current time there is a continuing need to have some flexibility around working arrangements whilst the pandemic continues. However, if the intention is to return to predominately workplace working in the future, employers are well advised to think about why that is necessary so that, if a flexible working request is forthcoming, the business reasons for rejecting or varying a request is place. This can and should not replace proper consideration of each application but will ensure a consistent starting point for each application.

If you would like any help in this area, whether for guidance on process or the preparation of policies, please contact Chris Brazier or the employment team on 01753 279029 or enquiries@bpcollins.co.uk.

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