How to handle flexible working requests appropriately, with Thrive Law

Over the last couple of years, the world of work has experienced astronomical change. The Coronavirus pandemic and ensuing lockdowns have impacted our working and personal lives in many ways, and one of the broadest spread effects has been home working.

Over the last couple of years, many employees, where they have been able to do so, have experienced periods of home working. However, following the latest Government announcement in January that Plan B restrictions would be lifted, employees are no longer be required to work from home.

With this in mind, information from a talk by Thrive Law at the Reward and Payroll Summit 2021 is timely to share. In this talk, Managing Partner Jodie Hill discusses the impact of the Coronavirus pandemic, including how flexible working is becoming increasingly popular and how to handle flexible working requests submitted by your employees effectively.

Thrive Law is on a mission to effect meaningful change

Thrive Law was founded by Jodie Hill in 2018. Following her own experience of a mental breakdown, Jodie realised that there was still some way to go in breaking the stigma, and she has since become a champion of mental health. She founded Thrive Law with a mission to "educate and empower employers with a strategy designed to ensure the wellbeing of their staff" as well as change "the established perceptions of what constitutes a disability through education and leading by example”.

Thrive Law offer a range of services to support employers and their employees’ including Employment Law support, Outsourced HR, Training, Mental Health and Wellbeing Strategy and  Training as well as Diversity & Inclusion Strategic Support.

The impact of COVID on flexible working

As Jodie highlighted in her talk, COVID-19 and the numerous lockdowns have had a significant impact on flexible working. It forced companies to adapt and put in the infrastructure to ensure that employees were able to work from home, which created an increased awareness of employees' home lives – for example, where individuals needed to work around home-schooling their children.

Some employees adjusted to working from home and preferred it to their usual working base, with shorter commuting times and more control over their workspace. Others hated it, for example, where they lived alone and became isolated due to Government restrictions. Others were happy with a balance between the two.

At Dataplan, when Coronavirus first started appearing in the UK, we took measures to build a backup equipment supply and create a home-working deployment plan. This meant that as the first lockdown was introduced, we were able to deploy our employees to home-working effectively in a matter of days and handle their queries and support them through the process.

Flexible working and mental health

For employees who did enjoy working from home or a mixture of home and office-based working, “hybrid” and “smart” working can support their mental health. Jodie highlighted some of the benefits these employees experience, including more time for self-care routines, more time with their family, less time lost commuting, varied working hours allowing them to work when they are at their best and potential cost savings.

Therefore, with the impact that COVID-19 has had and the potential benefits of working more flexibly, it is essential to consider whether it is appropriate for your employees and how to handle it should a flexible working request be submitted. Employers need to be aware that there are many different perspectives, and every employee will be different, meaning every request should be dealt with on a case-by-case basis.

The right to flexible working

In the UK, all employees have the right to formally request flexible working if they have more than six months of service with the employer. ACAS have a vast range of advice on flexible working and the process for submitting a request.

Whilst the current right commences after six months; there are ongoing Government proposals to make this a right from day one of employment. Employers are legally obliged to deal with it fairly and reasonably, and requests must be dealt with within three months of receipt.

Rejecting flexible working requests

Under the current rules, as an employer, you are can only reject a flexible working request based on the following circumstances:

• Planned structural changes
• The burden of additional costs
• Quality of standards will suffer
• Won’t be able to recruit additional staff
• Performance will suffer
• Won’t be able to reorganise work among existing staff
• Will struggle to meet customer demand
• Lack of working during the periods you propose to work

It is a difficult decision for employers to make, as it is generally a given that people communicate better when working within their teams; however, we do appreciate that for some, it has changed their outlook on work life balance. It is wise to look at each application in isolation, as each person’s circumstances, although they may appear the same, may have a few key factors that separate one decision from another.

It is also important to note that the employee does have the right to appeal the rejection.

Thrive Law strongly advises a policy that clearly outlines the statutory right to request home working, not only for the benefit of employees but also for managers to understand what they are dealing with and the process that must be followed to deal with requests. It is also helpful to have a Hybrid Working policy and consider Smart Working where you are more flexible and do not require a formal flexible working request to be made.  If you are unsure about the difference between these Jodie is happy to have a chat - you can book a free call with her using this link.

The risk of discrimination

When considering flexible working requests, it is crucial to ensure no discrimination occurs. As an employer, you must consider whether flexible working would be a reasonable adjustment, for example, where the person is disabled under the Equality Act 2010, and whether the adjustments are to allow the person to function as if they didn't have a disability or at least reduce the disadvantage they face at work due to their disability.

Additionally, employers must carry out a risk assessment on pregnant employees. There may be circumstances where the employee is required to work from home or have adjustments made on that basis.

Rejection of flexible working requests, if not considered fairly or reasonably, could give rise to indirect sex discrimination and disability discrimination, which can have severe consequences and impact the relationship with the employee.

Considerations for employers

There are some areas to consider when it comes to home or hybrid working implementations as a result of a flexible working request or change in the way the business works. Employers should consider:

• Data protection – protection of confidential information, for example, where the employee is not working from home, such as on a train
• Health and safety – homes are still workplaces and need to be safe
• Capability and coverage – ensuring enough staff to cover workloads and ensuring the workload does not become untenable.
• Overseas working – there can be tax consequences, and in practice, an employee should be required to give notice if they intend to work abroad.
• Hours monitoring – using tech and other tools to ensure that people are working when they are supposed to be, and this fits with your culture

Whatever the situation, it is vital to communicate with your employees effectively. Thrive Law recommend maintaining visibility so that you can see where someone may be struggling, and they also advise clearly communicating your expectations with them.

 Employees should know:

• Whether they have to tell you plans in advance
• If they are able to work from home and care for children
• How flexible their hours are
• If they are required to record time
• Clear policies stating the difference between smart working, hybrid working, flexible working and home working