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Flexible working requests on the increase post Lockdown

October 2021

Perhaps unsurprisingly as Furlough has come to an end, employees are asking for managers to consider allowing different ways of working. An employee may make a Flexible Working request.

Perhaps unsurprisingly as Furlough has come to an end, employees are asking for managers to consider allowing different ways of working. An employee may make a Flexible Working request without having to put a particular reason (such as looking after dependents) provided they have worked for more than 26 weeks. 

Employees (without all those hours commuting and overlong meetings) may have developed some very positive patterns: mixing childcare and looking after elderly relatives whilst getting things done; finishing at 5 and being mentally present for the young ones…and many of these may of course benefit you: Zoom meetings are a good example of productive use of time without travel and costs. Employees may wish to formalise FW patterns developed over recent months and generally reaching a new arrangement is not a problem. 

But it’s not always a rosy picture. Working from home presents pressures for managers: how can they be sure that staff are actively engaged rather than just doing the bare minimum? Are some tasks really doable via Zoom? How do you maintain team spirit tucked away at home? And do those expensive premises remain empty most of the time?

A recent case of ours RE v Slough Children’s Services Trust (attached to this PDF) illustrates how the pursuit of a work life balance can sometimes become a burden to employers. In this case the employee’s FW application was found by the tribunal to be unreasonable and that he’d used it to pursue a groundless claim for sex discrimination and whistleblowing (both struck out at a Preliminary Hearing). The case shows how the facts of each application are crucial. Here the employee didn’t compare himself with (female) employees in similar circumstances. None of his comparators’ requests would impact on the service in the way which his did.

Other cases suggest that even senior employees can expect the working world to revolve around them in disruptive ways, making unworkable requests.

This note will hopefully help with more difficult FW requests. The judgement is a helpful and clear summary of the key legal issues which led to strike out of the claim, saving huge expense and time of a full hearing. 

Making a FW application

The process begins with a written You may have a standard FW request if not, use the ACAS standard (you can download a copy here). This is called a ‘statutory application’ and must:

  • state that it is a flexible working request
  • explain the change being requested
  • have a proposed start date
  • identify the impact the change would have on the business and how that might be dealt with
  • state whether the employee has made any previous flexible working requests.
  • You may receive vague references to flexible working (for example in a lengthy grievance) in which case ask the employee to submit a statutory application and ideally send them a standard application so that they address the specifics.
  • An employer must deal with flexibleworking requests in a reasonable manner and in a reasonable time. The time between the request and the final decision (including the outcome of any appeal) should be less than 3 months unless a longer period is agreed.

Types of flexible working include:

  • Job sharing
  • Working from home
  • Part-time
  • Compressed hours
  • Flexitime
  • Annualised hours
  • Staggered hours
  • Phased retirement

While the right to request FW is generally viewed as a right to request a permanent change to terms and conditions, an employee can request a temporary change although they will need to state the duration

The ACAS Guide suggests that where the employee is looking for an informal change for a short period, for example, to cope with a bereavement or for a short course of study, the employer may wish to consider agreeing that they may revert back to their previous terms at the end of a fixed period or after a specified event.

Responding to a FW request

Whilst the timescales for responding are generous, it always better to be prompt. You want to keep your employees motivated and delays may cause resentment or a feeling that you are making life difficult.

Be open minded and reflective. There are stereotypes to be avoided- women as carers and men as breadwinners is an obvious one…

Look at the specifics of the role, be flexible, try to meet the employee half-way if you can.

This article together with notes on a recent Tribunal Judgement: RE (Claimant) v Slough Children Services Trust (Respondent), a case GT Employment Lawyers were involved in are available as a download by clicking the download link below.

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