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Can I use a trial period to test flexible working arrangements?

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The traditional working structure has been undergoing a transformation in recent months and with the advent of technology and programmes like Skype and Slack, employees being able to work remotely or from home is becoming more common place. In turn, this has led to an increase in flexible working requests so employees can have a better work-life balance. If an employee does make that request you can trial a flexible working arrangement; in this article, our Employment Law team detail what to do if a flexible working request is made and when to use a trial period.

What do I do if an employee makes a flexible working request?

Employees have a statutory right, subject to certain eligibility criteria, to request a change to their working arrangements by making a flexible working request. If a change is agreed, the change will become permanent.

If a flexible working request is made, you are under a duty to deal with any statutory request in a ‘reasonable manner’, giving it careful consideration. Whilst you might want to reject a request over doubts as to whether it will work, agreeing to review the arrangements over a trial period and being open to making potential modifications should help satisfy this requirement and maintain good employee relations.

The legislation regarding such requests does not specifically provide for the use of trial periods. However, it does allow for you and your employee to agree the terms on which any new arrangements are entered into, including that they will apply initially only for a set period of time and are subject to review. This means that you and your employee can agree to use a trial period before permanently implementing a flexible working arrangement. A trial period allows you both the opportunity to see how the arrangements work and whether any problems could arise.

What do I do if my employee and I don’t agree on the outcome of the trial period?

Sometimes different views may be formed as to the success of the arrangements. If you conclude that the proposed arrangements will be difficult to sustain, you may well face difficult conversations with your employee who feels all has gone well, particularly if you’re unable to offer alternative solutions. Therefore, you should not rush into automatically agreeing trial periods whenever new working arrangements are proposed. Careful consideration must be given as to whether or not a trial period is appropriate. To decide, you should make sure you have all the information necessary to make the decision.

When should I use a trial period?

Trial periods should be used appropriately, for example where it is considered the arrangements could work but for good business reasons, you feel unable to commit outright. The trial period should be for no longer than is needed to make a reasonable assessment of the proposed flexible working arrangements, it must be carefully monitored, and not be left to run after the set end date without further agreement.

You must notify the employee of your final decision within three months of their request for flexible working, unless you and your employee agree a longer time period. This means that you and your employee should agree to extend the statutory time limit under the flexible working procedure (unless the trial period will be completed within the three-month decision period).

It is important that you and your employee document the new working arrangement, making clear that it is only a temporary variation to the terms of the employee's contract. The written agreement should state its start and end date with you reserving the right to cut it short or lengthen it and any other agreed changes. It should record that you also reserve the right, at the end of the agreed trial period, to require the employee to revert to their previous working arrangement. The document should be signed by both parties.

Flexible working arrangements can be useful for both yourself and your employee, but it is important that it doesn’t disrupt the normal running of the business. If an employee has requested a flexible working arrangement and you would like advice on how to implement a trial period, or if this article has raised any other queries, you can contact the Employment team on 023 8071 7717 or email employment@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.