What rights do employees have when it comes to flexible working?

Harper Macleod is proud to be sponsoring CIPD’s upcoming annual conference on 30 March 2021. The conference will explore “how businesses have been forced to adapt, react and implement some of the most radical changes in the way they operate in the midst of uncertainty and socio-economic disruption of the past year” with a host of great speakers lined up. You can find out more about the conference and buy tickets here.

One of the topics being discussed at the CIPD conference is “Making flexible working a reality” and in this blog we explore the current legal position with regards to flexible working and the potential impact of Covid-19.

What is flexible working?

Employees who meet certain requirements have the right under statute to make a flexible working request. In this context, a flexible working request is where an employee requests to change their terms and conditions of employment which relate to any or all of the following: (1) how many hours they are required to work; (2) when they are required to work; and/or (3) where, as between their home and their employer’s place of business, that work is done.

As such, it would it include a request to work part time; a request to work from home some or all of the time; or a request to work compressed hours.

Who has the right under statute to make a flexible working request?

Since June 2014 all employees can make a flexible working request (provided certain conditions are met) and it is no longer only available to employees who make the request to allow them to care for a child or adult (albeit a request can still be made where this is the purpose).

The conditions which require to be met to be eligible to make a request are as follows:

• The person making the request is an employee and not a worker or agency worker;
• The employee has at least 26 weeks’ continuous service; and
• The employee has not made a statutory request for flexible working in the previous 12 months.

What about requests that fall out with the statutory regime?

The above are the requirements if an employee is seeking to exercise their right under statute but requests to work flexibly may be made out with the statutory regime. For example, a request by a worker (as opposed to an employee) to work flexibly or a request to work remotely but not from the person’s home would both fall outwith the statutory right to make a flexible working request.

It is open to an employer to take the stance that it only considers flexible working requests that fall within the statutory regime. There are risks to this approach, for example if the request is from a disabled worker, it may amount to a reasonable adjustment to allow the request. An employer should also be conscious of not breaching the implied term of trust and confidence in the employment relationship. A safer approach would be to consider requests that fall out with the statutory scheme on a case-by-case basis while being mindful of any precedents that could be set.

It is advisable that employers have in place a flexible working policy which covers both the statutory right to make a flexible working request and how the employer will approach requests which are not covered by the statutory right.

How should an employer handle a request?

An employer who receives a request in accordance with the statutory right to request flexible working must deal with the request in a reasonable manner and within three months of the date of the request unless an extension is agreed. The ACAS Code of Practice on Handling in a Reasonable Manner Requests to Work Flexibly provides guidance for employers on how to deal with a request reasonably and will be taken into account by Employment Tribunals where relevant.

An employer can only refuse a request made under the statutory regime if one or more of the following grounds apply:

• the burden of additional costs
• detrimental effect on ability to meet customer demand
• inability to re-organise work among existing staff
• inability to recruit additional staff
• detrimental impact on quality
• detrimental impact on performance
• insufficiency of work during the periods the employee proposes to work
• planned structural changes.

The impact of Covid-19 on flexible working

One of the greatest impacts of Covid-19 on the workplace has been the significant increase in people working from home. It’s expected that moving forward there will be an increase in flexible working requests, particularly requests to work from home on a permanent basis. It’s worth noting that before the pandemic in the Queen’s Speech in 2019, the Government proposed new legislation under which flexible working would be the default position unless employers have a good reason otherwise (such legislation has not been introduced to date).

Employees making flexible working requests may well point to their time working from home as proof that working from home and potentially also working more flexible hours around childcare for example, works. Employers in receipt of flexible working requests like this should consider carefully their experience of the more flexible working arrangements in place during the pandemic.

For some employers they might have observed high levels of productivity while employees have been working from home and reports from employees that the increased flexibility has benefitted their well-being. For other employers, the experience may not have been so positive. Those in the latter category who are considering refusing the flexible working request on the basis of one of the grounds above should consider what evidence they have that working from home during the pandemic has negatively affected the business (for example customer complaints). The potential for a refusal of a flexible working request to give rise to another Employment Tribunal claim (such as an indirect sex discrimination claim) should also be borne in mind.

How we can help

There are a number of ways in which our employment team can assist, including providing advice on how to handle a flexible working request whether it falls within the statutory regime or not and we can also review an existing or prepare a flexible working policy for your business.

• Glasgow: 0141 227 9344   
• Edinburgh: 0131 381 0200
• Inverness & Highlands: 01463 795 035
• Elgin: 01343 614308
• Shetland: 01595 727582