This blog examines the likely opening up of the floodgates of potentially irresistible flexible working requests as a result of working from home being widely popular amongst employees and productive for employers.
Workers in a Covid World
Workers have, in general, responded favourably to working from home. In a survey by Tiger Recruitment in May 2020 published in HR Magazine it confirmed that 74% of workers enjoyed the time they saved not having to commute, 73% enjoyed the associated cost savings and 53% enjoyed the increased flexibility in how they work. Over half of the respondents hoped that their employers would appreciate how working from home can have a beneficial effect on productivity and that the employer will continue to support homeworking when workforces return to offices. Interestingly, 865 of employers considered that workers were working effectively from home and 59% said that they would be more supportive of home working in future.
The flip side of employers enjoying the success of homeworking is that if the business chooses to return the workforce to the place of work, there may be reluctance for employees to cease working from home. This is likely to lead to a surge of flexible working requests being made to employers. Employers will have to justify refusing such requests in the context of those employees having demonstrated that their work can be done from home. This is likely to lead to a succession of Employment Tribunal cases and the Tribunal is likely to be reluctant to side with an employer who has ignored the new normal, that working from home is often possible without hindrance on the business. Watch this space for an update on the caselaw in due course.
What is Flexible Working?
Put simply, ‘Flexible Working’ is a basis of working that suits the employee’s needs. Examples of different types of flexible working include part-time working or job shares, working full-time hours over a shorter week, flexi-time and work from or part from home. All the research, undertaken since the outbreak of Covid-19, points towards a greater demand for flexible working from the workforce.
What are Flexible Working Requests?
Since 30 June 2014, employees (with at least 26 weeks’ continuous service) have been entitled to make a statutory request, in writing, for flexible working. A flexible working request must:
- Be in writing.
- State whether the employee has previously made a flexible working request and, if so, when.
- Be dated.
The request is taken as having been made on the date that it has been received.
Employers are obliged to deal with in a reasonable manner and notify the employee of the outcome, including any appeal, within a three month period. The government has provided the following examples of how an employer can act ‘reasonably’:
- Assessing the advantages and disadvantages of the application.
- Holding a meeting to discuss the request with the employee.
- Offering an appeal process.
ACAS has produced helpful guidance entitled “Code of Practice on handling in a reasonable manner requests to work flexibly”.
If an employer wishes to resist a flexible working request, it can only do so on one of the following grounds:
- The burden of additional costs;
- An inability to reorganize work amongst existing staff;
- An inability to recruit additional staff;
- A detrimental impact on quality;
- A detrimental impact on performance;
- A detrimental effect on ability to meet customer demand;
- Insufficient work for the periods the employee proposed to work;
- A planned structural change to your business.
If you reject the request you should allow the employee to appeal that decision. All requests, including an appeal, must be dealt with promptly and within the three month period starting from receipt of the request.
Discrimination: Avoiding the Pitfalls of Flexible Working Requests
Discrimination is unlawful in the UK, under the Equality Act 2010, in relation to certain “protected characteristics” relating to age, disability, gender reassignment, pregnancy and maternity, race, religion and belief, sex, being married or in a civil partnership and sexual orientation (“Protected Characteristics”). The Act covers employees, contract workers and job candidates.
Unlike in relation to a claim for unfair dismissal, which requires a minimum of two years continuous service, a claim for discrimination under Equality Act 2010 does not require a minimum length of service.
There are three types of discrimination that you need to be aware of:
- Direct Discrimination – This would be wear you treat someone less favourably because of a Protected Characteristic.
- Indirect Discrimination – Most common in flexible working scenarios. This is where an employer applies the same rules to all employees, but those rules cause difficulties for women or others with a Protected Characteristic. Indirect Discrimination is further defined as:
- The employer applies a provision, criterion or practice (“PCP”) to an individual, who has a Protected Characteristic. The definition of PCP is wide and effectively catches anything an employer does in terms of any workplace requirements, practices etc.
- The employer applies or would apply the same PCP to individuals who do not have the same Protected Characteristic as that individual.
- That PCP puts individuals with that Protected Characteristic at a disadvantage compared to individuals without that Protected Characteristic.
- The employer cannot show that having that the PCP is a “proportionate means of achieving a legitimate aim”. This is referred to as the “justification defence” and is a step beyond the “reasonable justification” defence used in relation to unfair dismissal cases. In order for an employer to succeed in using the justification defence, it must evidence that its actions were in pursuit of a legitimate aim and were a proportionate means of achieving that aim.
A claim for discrimination can arise in a flexible working situation when an employer wants to impose a change in the individual’s working pattern or when the individual wants to ask for a change. As a result, you need to give consideration to any flexible working requirements that you set or any decisions that you make in relation to requests made by employees.
In Starmer v British Airways, the Employment Tribunal held that British Airways had unlawfully discriminated against a female pilot when she was refused a request to work part-time hours. The decision was upheld by the Employment Appeals Tribunal. Starmer had reduced her working hours to 75% following a period of maternity leave on the birth of her daughter and approached British Airways about a 50% reduction in hours to enable her to spend more time with her daughter. British Airways refused, for a number of reasons including, on the basis that it required pilots to undertake 2,000 hours of flying before reducing working hours below 75% of normal full time hours, to ensure that pilots have a sufficiently wide experience of flying conditions. This claim shows that a one-off decision can be considered a PCP for the purposes of discrimination in flexible working cases. It also demonstrates the limits of the justification defence in cases such as this.
Employers granting one flexible working request but not another or prioritising requests need to beware of discrimination claims. Find out how to avoid the pitfalls
All employees with more than 26 weeks' service can now request flexible working. Employers need to know whether and how to prioritise competing requests without risking discrimination claims from disgruntled employees.
If you haven't already done so, the first priority is to introduce a flexible working policy. This should make it clear how requests will be handled and which business needs justify a refusal. It should clarify that requests will be considered on a case-by-case basis and that the fact that one request is granted doesn't mean another will be. It should provide for the employee and their manager to discuss whether flexible working is consistent with the needs of the business when a request is made.
It is crucial to consider the possibility of a discrimination claim when deciding on a flexible working request. Make sure you can justify your decision and keep thorough records and evidence of any investigations and the decision that you make. If the decision is to grant the request, consider limiting the initial approval to a specific date, allowing for a review at that point, and make clear that the flexible working arrangement may change in the future, on reasonable notice, depending on business needs.
Flexible Working Requests: New Considerations Post-Covid 19
CIPD have identified four strands of new considerations that employers should consider when evaluating a flexible working request during the pandemic. They summarise the strands as being:
- Balancing caring and non-work responsibilities with work. Employers should consider whether it is commercial advantageous to agree to flexible working requests for employees with dependants, who would otherwise be forced to leave their jobs. Employers should consider the cost of recruitment and training for any replacement employee, and the inherent risk in bringing in a new employee.
- Whether having a more flexible workforce could benefit the employer by enabling it to respond to quieter trading periods.
- Providing employees with the flexibility to deal with emergencies that arise during the pandemic. Having a plan now will enable employers to adapt and thrive in situations where employees are forced to work flexibility due to caring for dependents.
- During a time when employees are feeling external pressures as a result of the pandemic, employers showing flexibility on flexible working requests are likely to see a more motivated workforce.
Communicating With Your Employees
Employers should also consider how they are going to measure the output of an employee working flexibly, particularly those working from home. You should set clear expectations for your employees. Communication is likely to be key in ensuring employees working flexibly feel connected to your business. Rob Liddiard, co-founder and CEO of social leadership gurus Yapster, explains “Social leadership is about communicating clearly and honestly. It’s about owning the challenges that stand in front of you, and acknowledging the impact your decisions as a leader will have on the situations being lived by your team”. Liddiard believes over-communicating is better than under-communicating in the post-Covid 19 world. Ensure employees working flexibly do not feel isolated from their team. Use tech to enable colleagues to catch up and have informal meetings that form part of the normal day when working from your place of business. But encourage appropriate levels of communication so that employees, particularly those working part-time, do not feel that they must always be “on-line”.
Employers should prepare for increased flexible working requests as a result of the transition to working from home as a result of the pandemic. Other drivers may include parents and others with dependents wanting to restructure their working patterns to spend more time with their loved ones or to enable them to care for their dependents as a result of changing work patterns of their partners.
That is not to say that all requests should be accepted. You must also think about what is best for your business. If allowing a flexible working request would harm your business, try to find a via media that will ensure your business is protected and your employee is happy. Losing an unhappy employee is expensive, so accommodating their needs, where possible, makes sense.
You have or will have a portion of your staff working flexibly. Create structures so that you can effectively manage your employees, keep them safe whilst they are working from home and feeling part of the team despite either working less hours or away from your place of work.
Avoiding tribunal claims relating to flexible working requests will save you management time and legal costs, but most importantly, it will enable you to retain talent and maintain a happy, productive workforce.