I Wonder What's the Best Way to Handle Flexible Working Requests

Since COVID, remote or hybrid working has allowed employees to achieve better work-life balance and remove the pain of commuting. Whilst flexible working arrangements can be beneficial, there are circumstances where they would not suit a business need. This article will explain what flexible working requests are and how you should respond.

What is Flexible Working

Flexible working requests give employees an opportunity to request a change to their working pattern. This could be to:

• Reduce or vary their working hours;
• Reduce or vary the days and time they work; or
• To work from a different location (for example, from home).

When an employee makes a flexible working request, the time between making the request and notifying them of the final decision (including the outcome of any appeal) must be within 2 months, unless agreed otherwise.

Flexible working requests can only be requested by employees, and they must not:

• Have made two flexible working requests during the last 12 months (which includes requests that have been withdrawn); and
• Make a request to work flexibly if an earlier request has not yet been resolved.

The request must be in writing, dated, explain the change being requested, include the proposed start date, and state whether the employee has made any previous flexible working requests.

How should employers respond?

Once you have received a flexible working request, you should arrange a meeting to discuss the request. This is to discuss the practicalities of the requested change in work pattern and its impact on the business. If you have decided that the request is appropriate, you should notify the employee of the decision as soon as possible.

You may decide to trial the flexible working arrangements and make a decision once you’ve had a chance to see how they work in practice. If you do implement a trial period, you must ensure you make a final decision within the 2-month decision period, unless mutually agreed otherwise with the employee. Whilst there is no requirement to record the agreement in writing, it would be good practise to do so.

If the request is rejected

You can reject a flexible working request for any of the following statutory reasons:

• the burden of additional costs
• detrimental effect on the ability to meet customer demand
• Inability to reorganise 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, or
• planned structural changes.

You can also refuse their request if they were not eligible to make one, for example, if the employee had already made two flexible working requests in the previous 12 months.

You must tell the employee that you have refused the request; you should not refuse any request without first consulting them. Whilst the legislation does not expressly require you to offer an employee the opportunity to appeal this decision, it is best practice to allow the employee to appeal.

What should employers do to ensure compliance?

In summary, here is what you should do to ensure that you are adhering to flexible working rules:

• Flexible Working Policy: Having a policy that employees can follow will ensure they are aware of their requirements and entitlements for requesting a change.
   
• Hold a meeting after receiving a request: Consult with the employee to understand their reasons for the request and any considerations you may have in implementing the change.
   
• Ensure consistency in decisions: You must treat all flexible working requests objectively, and any rejection must be clearly based on one of the above eight statutory reasons.
   
• Consider a trial period: It gives you an opportunity to test the arrangement in real time and determine its impact on the business.

In conclusion, flexible working is here to stay, and employers can expect to continue to receive flexible working requests. You must consider requests fairly, and must be able to justify a rejection by reference to one of the eight statutory reasons. To mitigate risk, employers should implement a clear and comprehensive flexible working policy that sets out the procedures employees must follow when making a request and ensures that such requests are handled fairly and lawfully.

Further Advice

If you have any queries on flexible working or any other employment-related matters, our Peace of Mind Team is here to provide expert guidance. Our Document Audit Team can also assist in drafting relevant workplace policies.

Contact our Employment Team by emailing employment@warnergoodman.co.uk or calling 023 8071 7717.

Make Work Pay Programme

With the passing of the Employment Rights Act, UK employers face increasing pressure to adapt their practices and stay compliant with new regulations.

Our Make Work Pay Programme offers a structured, six-month, fixed-fee solution that helps businesses:

• Understand and prepare for new employment legislation.
• Align internal processes with legal and commercial best practices.
• Minimise risk and build a stronger, compliant workplace.

Click here to learn more about how our Make Work Pay Programme can help your business.