Tina Chander is partner – head of employment law, at Wright Hassall

Many businesses are now planning the safe return of staff to the office, following an extended period of widespread remote working. But there is an expectation that many of those coming back will be looking to continue a culture of flexible working on a long-term basis, so businesses should expect a lot of formal requests in the months ahead.

Many companies won’t wish to accept all requests, and employers will need to take the time to consider each on its own merits and see if a compromise can be reached.

It is highly unlikely that businesses will be in a position to accept every single formal flexible working request

What to consider

The first consideration is whether the employee is eligible to make a formal flexible working request. To do this, an employee must have at least 26 weeks of continuous employment and cannot have made a similar request within the past 12 months.

Any request for flexible working must be made in writing so there is a written record – an email is as acceptable as a written letter. While many employees may look to discuss the matter more informally with their line manager in the first instance, they should be reminded of the need to place their request in writing too.

The flexible working request should, for clarity, state that it is a flexible working request and that the employee meets the eligibility criteria, explain the reasons for the request and provide any other information in relation to the desired working pattern that the employee believes will be relevant in helping the employer make a decision. The more information given, the easier it will be to determine the practicality of the request.

As an employee can make only one formal flexible working request in any 12-month period, employers should check their records to ensure this is the case.

The employee’s case

Flexible working requests can be wide-ranging but will usually contain one or more of the following:

  • a change of work location – eg working from home for some or all of the employee’s contracted hours
  • a reduction in or variation of the days the employee works – eg compressing their contracted weekly working hours into fewer days
  • a reduction in or variation of working hours – eg potentially reducing a current full-time role to a part-time one, or flexible start and finish times for the employee’s working day.

Having received a request, the employer must deliver an answer within three months, allowing time for the individual to submit an appeal if the decision goes against them. This time can be extended by mutual agreement where considerations are more complicated.

There may be occasions where the request can be approved easily and without the need for further discussion. However, the usual practice is to arrange a meeting with the employee to discuss their request further.

It is good to understand the reasons why an individual is making the request, as it may also deliver benefits for your organisation

Reasons to refuse

There will inevitably be circumstances where employers cannot accommodate a flexible working request, especially if they are receiving numerous requests. But they can refuse a flexible working request only if one or more of the following reasons detailed in the legislation apply:

  • Additional costs associated with the change will impact the business.
  • The change will make it more difficult to meet expected customer demand.
  • The business is unable to redistribute work among colleagues.
  • The business is unable to hire new staff to fill gaps left.
  • Service quality will be negatively impacted by changes.
  • The performance of the business will be reduced by any change.
  • There is lower demand at the times the employee wants to work.
  • The business is already planning changes to the workforce.

Again, the employer should communicate the decision in writing, with an explanation of the reasons for refusal and giving the employee the option to appeal the decision.

Before deciding whether to accept or refuse a request, employers must consider whether the employee is protected under the Equality Act 2010. Refusing a request from employees afforded this protection could result in claims of discrimination.

Working through lockdown

Encouraged by maintained productivity levels throughout lockdown, a lot of organisations have warmed to the idea of flexible working. However, it is still highly unlikely that businesses will be in a position to accept every single formal flexible working request, especially if a large number of employees all ask for similar outcomes.

In addition, in some businesses, physical workplace presence is needed to ensure operations continue as expected, particularly for senior staff members responsible for managing a team of people. Therefore, each request should be considered on its own merits. There may be scope for some compromise, but the interests of the rest of the workforce should be kept in mind before requests are accepted.

Remember, some flexible working requests will be from full-time employees who are looking to change to part-time working hours, so it is best practice to understand the reasons why an individual is making the request, as it may also deliver benefits for your organisation.