Is flexible working the new norm?
In the space of a single week back in late March 2020, those in the UK who could work from home were urged to do so. Millions adjusted to working from home almost overnight. The expected result is that employers may see a big increase in flexible working requests going forward. Here are some points to bear in mind if you find yourself in that situation:
- Employees with 26 weeks’ continuous service have the statutory right to apply for flexible working, which can include changes to the number of hours they are required to work; the times they are required to work; and/or their location of work. Applications can therefore cover patterns including part-time working, compressed hours, flexi-time, job-sharing, shift-working, staggered hours and term-time working.
- Amongst other things, the application will need to explain what effect, if any, the employee thinks the proposed change would have on the employer and how, in their opinion, it can be dealt with. This is where a period of say 12 weeks of successful working from home during lockdown may be very useful ammunition for an employee.
- Employers must deal with a flexible working request in a reasonable manner and give reasonable consideration to the requested flexible working practices. Requests may be rejected on specified business grounds only, namely:
o burden of additional costs;
o inability to re-organise work among existing staff;
o inability to recruit additional staff;
o detrimental impact on quality;
o detrimental impact on performance;
o detrimental effect on ability to meet customer demand;
o insufficiency of work during the periods the employee proposes to work; or
o planned structural changes.
Again because of changes forced by lockdown, some of these grounds may be more difficult for employers to rely on than previously. Additional costs in, for example, IT and remote working technology, will already have been spent. Quality, performance and ability to meet demand will have been tried and tested.
In an attempt to get ahead of this, some employers are looking to introduce temporary or permanent changes. Where an employer wishes to do so, and those changes involve a change to terms and conditions of employment not already permitted under contract, the employer should obtain express agreement from staff (which should be easy if it’s a change to their benefit); unilaterally impose the change and use the employees’ conduct to establish implied agreement; or terminate existing contracts and offer re-employment on the new terms. As well or instead, new policies could be brought in around time off for dependents, rights to unpaid leave including but not limited to parental leave, compassionate leave, and in relation to employee wellbeing.
The existing flexible working regime could of course be diluted or rendered obsolete if the Government progresses plans to introduce a statutory right to work from home as part of the return to work plans during lockdown easing. We’ll keep you updated on developments on that as they arise.
For any questions on flexible working, you'll find Fiona's details at the top of this article.
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