The coronavirus pandemic and resulting lockdowns has meant that millions of people have had to work from home for the first time. Where, when and how we work has changed significantly over the last two years and employers are dealing with an increasing number of flexible working requests. The right to request flexible working through the statutory scheme has been in force since 2002, although often employees will make informal requests. Flexible working is likely to be a key part of employer’s strategy, in particular when maintaining their workforce going forwards.

1. Plan for the future

Many businesses were forced to adapt to flexible working, in particular employees working from home during the pandemic lockdowns. Employers will need to consider to what level they can maintain those working practices. If employers are seeking a return to normality, for example, employees working full time in the office they will need to be able to evidence why continuing with that level of flexibility does not work for them in the long term. For example, by reference to productivity and client service levels.

2. Give reasons

Where an employee makes a formal flexible working request through the statutory scheme, an employer can refuse the request based on seven statutory grounds. These include: 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 or performance, insufficient work during the periods your employee wants to work, and planned structural changes. All of these grounds relate to the business’ needs and the employer should be able to evidence why and how they are relying on each of the grounds. If the employer is dealing with informal requests, it should ensure it gives reasonable, proportionate and clear reasons as to why the request cannot be accommodated.

3. Consistency is key

Employers should ensure they take a consistent approach when dealing with flexible working requests. It is crucial to have a clear outlined process for dealing with requests centrally and ensure managers are aware of and follow the process.

4. Consider the circumstances

Whilst it is important to follow the businesses’ internal policies and procedures in respect of each request, when applying those policies, the employer should consider the employee’s individual circumstances when making a decision. It may be tempting to receive two similar requests and treat them identically, which can be good for keeping a consistent business approach. However, employers always need to consider why the request is being made as two situations may differ substantially, which in turn will affect the employer’s decision.

5. Explore alternatives

Where an employee makes a flexible working request, either through the statutory scheme or informally, and approval cannot be granted it is important that the employer explores alternatives or compromises that might work instead. The employee should be asked to put forward alternative options and the employer can also consider whether they can agree to part of the request or consider a compromise.

6. Analyse the risks

Dealing with and refusing flexible working requests can bring risk to a business, particularly where the employee is protected under the Equality Act 2010. For example, disabled people may request reasonable adjustments in the workplace and a refusal could lead to unlawful disability discrimination claims. Refusing a request for women may be indirect sex discrimination as women are more likely to be disadvantaged by that practice. The discrimination may be justified if the employer can show they have a legitimate business aim for refusal that is proportionate. Other protected characteristics are also relevant, for example if an employee requests a change in hours to attend prayer or religious services.

7. Consider a trial period

It is reasonable, if an employer is unsure how the business will be affected by such a request, to consider a trial period. What is reasonable may be different for each business. However, if a trial period is being allowed, then the employer should permit for some time for that adjustment and not pre-emptively make a decision based on some initial teething difficulties. This trial period may also be beneficial as it could identify the specific ground on which an employer will rely on for refusal, if that is the outcome of the trial period.

8. Keep a paper trail

An employer should document the investigation it carries out into any request and how it may accommodate it or any alternatives, their reasoning and outcome in writing. In the event of a claim, an employer will need to be able to evidence this paper trail.