Flexible working requests in the post-pandemic world

Businesses are preparing for the post-pandemic world where some form of return to office is very much front of mind. Whilst some companies have requested a full-blown return to office five days a week, most employers are taking a much more proactive stance, especially among tech companies where as much of “normal office life” as possible is being contemplated and implemented.

After 18 months of remote working, the pandemic appears to have driven a wedge between the employee’s perception of a way of working and what the business demands of their employees. How long this wedge will continue remains to be seen but for now this difference means only one thing: a rise in flexible working requests.

This might come in various forms, such as working at home for longer periods, to varying the working hours or requests to work from home full time, as they have done during most of the pandemic. Such requests not only come from existing staff but also during the recruitment process where prospective employees are looking for flexible working as part of the terms and conditions of their new employment.

Making a flexible working request

For broadly any variation to the existing working pattern (whether time or location), the employee would need to make a flexible working request.

However, a request can only be made by an employee (not consultants or agency workers) who has been employed continuously for 26 weeks at the time of the request, and must not have made another request in the preceding 12 months.

The request must also meet the following requirements:

1. be in writing and dated;
2. state that it is a flexible working request;
3. explain the change being requested and proposed start date;
4. identify the impact it would have on the business and how it might be dealt with; and
5. state whether any previous requests have been made.

What are the employer’s obligations?

If the employer intends to accept the flexible working request in its entirety, formal procedures become moot but this is unlikely in many cases, which means it will need to follow the minimum procedural steps.

The employer must:

1. deal with the request in a reasonable manner;
2. notify the employee of the decision within the decision period of 3 months; and
3. only refuse a request based on one or more of the statutory grounds.

Rejecting a request must be for one or more of the following statutory grounds:

1. burden of additional costs;
2. detrimental effect on ability to meet customer demand;
3. inability to reorganise work among existing staff;
4. inability to recruit additional staff;
5. detrimental impact on quality;
6. detrimental impact on performance;
7. insufficiency of work during the periods the employee proposes to work;
8. planned structural changes.

Requests should be dealt with in a reasonable manner, including meeting with the employee to discuss the request and to allow the employee to be accompanied to such meetings by a colleague or trade union representative. The decision period is 3 months from the date of the request (or a longer period as the parties may agree).

Although appeals are not part of the statutory requirement, it is strongly advised that the employer provides an appeal procedure in the event of rejecting the request. Allowing the employee to appeal and meeting with the employee to discuss the reason for the rejection will go towards the reasonableness requirement and therefore ought not to be ignored.

Tactical considerations

When considering a flexible working request, it is important to record the factual bases for rejecting a request and make sure that they are as accurate as possible. What the employer wants to avoid is to allow the request upon hearing an appeal because it didn’t properly delve into the facts.

It is important to note that employers have 3 months to deal with the request. This provides sufficient time to properly consider the request, including appeal. Although the employer should not deliberately draw out the process for longer than necessary, as long as it is acting reasonably in considering the request, 3 months should give sufficient time to deal with the request. Until a decision is made either way, the employee is required to work in line with their pre-existing contractual provisions.

Pitfalls to avoid

For a big business, dealing with requests consistently is vital. This is easier said than done and there should be a central management of all flexible working requests that are being received so that any inconsistency in approach can be spotted and rectified. One of the core principles to draw out from case law is to avoid rejecting on technical grounds (for example, because the employee did not date the request) as doing so could invite other more serious claims (other than the failure to follow the statutory procedure) such as discrimination and/or constructive dismissal.

Another issue to consider carefully is trial periods. There is no statutory obligation to offer a trial period but the employee may argue that it was unlawful not to. If the employee requests a trial period but the employer decides otherwise, it is advisable to explain the reasons in the decision letter. Going one step further, if the employer can support its reasons with one of the statutory reasons for refusal, then all the better.

If you have any questions on dealing with flexible working requests, please contact Sungjin Park.

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