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COVID-19: Post-pandemic flexible working

  • Market Insight 21 May 2021 21 May 2021
  • UK & Europe

  • Employment, Pensions & Immigration

Working from home has become part of the new normal for many office-based workers. Whereas previously some employers were reluctant to allow regular or widespread homeworking, the Covid-19 pandemic has challenged these attitudes and has arguably paved the way for less traditional working models to thrive.

COVID-19: Post-pandemic flexible working

As lockdown restrictions begin to ease across the UK, employers are considering their options. This article considers the shape and role of office-based working in the future, and how to manage flexible working requests.

How the pandemic is shaping the future of the workplace

With many employees reporting being more productive working from home and enjoying a better work-life balance, the pandemic has triggered a desire on the part of a significant portion of white-collar employees, for a permanent shift in working models, with flexible hours and remote working.

A number of employers have already introduced new permanent hybrid working policies, with employees splitting their working week between the office and home in a post-pandemic world. Some employers, including Microsoft and Facebook, have gone even further, allowing some staff the option to work entirely virtually in future.

But remote working also comes with drawbacks. Greater risk of burnout and mental health issues are often referenced amongst these. Indeed, Barclays and Goldman Sachs have been outspoken in their views against permanent agile working, citing concerns around maintaining culture and collaboration as reasons for wanting to return to the ‘old’ normal.

Although the revolution of remote working was born out of necessity, the prevailing view seems to be that the majority of the UK workforce wish to retain some flexibility as a feature of their work going forward.

What might an agile working policy look like?

Some (but by no means all) employers who have surveyed their employees’ views and weighed up the pros and cons of remote working, have decided that agile (or flexible) working in certain areas can benefit their business and employees.  The flexible arrangement might allow the employee to vary the days they work from home with the permission of their line manager, or the time when they work, perhaps around a core set of hours in the middle of the working day. An agile working policy would set out the parameters of the home/office arrangements, including matters such as:

  • how to agree the agile arrangements and factors line managers might take into account to determine the suitability of the role for agile working
  • how communications, meetings and training are organised while home working
  • equipment for home and office use (including hot desking)
  • employee and management responsibilities
  • health and safety matters
  • monitoring
  • expenses while home working.  

Employers who do not put an agile working arrangements in place are more likely to be subject to pressure for more flexible working arrangements. Given the pandemic may have shown how well any particular flexible working arrangement might work in practice, rejecting requests might become more difficult. But this doesn’t mean that employers' hands are tied.

The current law on flexible working requests

Whether or not you have an agile working policy in place, employees with flexible working requests not covered by any policy can rely on the current law to make those requests. Employees with at least 26 weeks’ continuous employment can make a flexible working request. The request must be in writing, explain what change to the employee's working arrangements is being requested and explain the potential impact on the business. Employees are only able to make one request within a 12-month period.

These requests must be dealt with in a reasonable manner which includes giving reasonable consideration to the request, and notifying the employee of the employer's decision within a reasonable time and no later than 3 months after the date of the request. If an employer wishes to reject a statutory request, it can only do so on one or more of the following grounds:

  • the burden of additional costs;
  • detrimental effect on 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 that you propose to work; or
  • planned changes.

Although compensation for non-compliance, or for a decision based on incorrect facts, is capped at eight weeks' pay (up to a maximum of £544 per week), an employer who refuses a request may also face the risk of unfair dismissal, sex discrimination and/or victimisation claims (with compensation for discrimination claims being uncapped).

What are the key considerations when responding to flexible working requests?

  • Consider the evidence

Even if the role has been done effectively from home over the last year, it might not have been done optimally, and there may be certain elements of the role which have been sacrificed. Gather evidence by speaking to managers and understanding whether anything has been lost by the employee working from home full-time, or even part-time. For example, evidence showing a reduction in profits/output when working from home or an increase in customer complaints, or evidence showing detrimental impact on training, team building, loyalty and/or creativity. You may also be able find evidence from line managers showing difficulties in allocating workload or difficulties in conducting effective meetings partly virtual and partly physical, or because the nature of the role, the importance of face to face interaction or the need to attend the workplace at short notice (so justifying a refusal to homework from a long distance from the office).

Requests should be approached with an open mind, in terms of what can work for the business. If not the exact request, is there an alternative solution that might be accommodated and acceptable to the employee?

  • Be aware of discrimination risk

For example, is the employee making the request likely to be disabled under the Equality Act 2010? If so, the arrangement requested may amount to a reasonable adjustment, the refusal of which could result in a claim. It is therefore a good idea to include in any flexible working form/document whether a request to work flexibly is part of a request for an adjustment to a disabled person's working arrangements,

Many requests may also be based on managing childcare responsibilities. In these circumstances, if requests from female employees are accepted but the same request from a male employee is refused, this could amount to direct sex discrimination. Similarly, blanket policies requiring full-time working may be found to be indirectly discriminatory towards women (unless the policy can be objectively justified). You need to be able to demonstrate objectively the business reasons why the job must be performed in a particular way.

  • Follow the correct procedure

The law on the right to request flexible working requires the employer to deal with the request in a reasonable manner. This involves weighing up the benefits of granting the request against any adverse impact on the business. Provided this is done, and provided your refusal is based on one of the prescribed reasons, you will have complied with your obligations and will be entitled to reject the request under the flexible working rules. However, to mitigate the risk of any such rejection giving rise to a discrimination claim, you should:

  • Approach requests in a positive and consistent way.
  • Review your flexible working policy and ensure it is up to date.
  • Train HR and line managers to deal with requests in compliance with the policy.
  • Involve employees in the decision-making process in a way that considers their protected characteristics. For example, employees on maternity leave should be included in workplace communications and employers should ensure that they communicate in an accessible way with disabled employees.
  • Attempt to negotiate with employees before refusing requests outright. It may be possible to reach a compromise.
  • Consider a trial period. This will allow time to gather evidence as to whether home working works or not.
  • Carefully record the reasons for rejecting requests and show how you have tried to weigh up the benefits against the adverse consequences to the business. This should be communicated clearly to the employee.

The future

Given the extensive use of flexible working over the last year, considering whether, and if so, how the traditional office work model can be reviewed and changed, is a key focus for employers. Even before the pandemic, the government had proposed that flexible working be made the default position unless employers had a good reason otherwise, so it seems flexibility is here to stay.

Employers should also recognise that many employees now expect flexibility and will feel empowered to request it. They should prepare for a raft of requests which, if not given proper consideration, could affect staff morale and retention, as well as leaving employers open to tribunal claims.

The pressure is on for employers to strike a sustainable balance between the benefits and drawbacks of office and virtual working.

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