The issue of flexible working can be viewed from two perspectives. Firstly, there are situations when employers want to introduce new working patterns. Secondly, there are situations when employees request flexible working. Both scenarios are likely to become more common post-COVID19.
With that in mind, Chanda Bagga, Principal Solicitors at Valens Solicitors shares his thoughts and guidance on how to handle them.
When employers want to change working conditions
Any meaningful change to working conditions is almost certain to require an employee’s employment contract to be updated. An employee cannot be forced to accept the change to their contract. They can, however, potentially be made redundant if they do not and no other suitable alternative can reasonably be found.
In short, therefore, an employer making a change to an employee’s working conditions opens up a potential legal, ethical and reputational minefield. The key to avoiding the mines is to ensure that, at a minimum, the change is “net zero” for the employee. In other words, even if the change does not improve the employee’s situation, it does not make it worse either.
This principle covers both practicalities such as health and safety and less tangible issues such as career progression. An employer can do a lot to head off potential objections by thinking about the situation from an employee’s perspective. In fact, ideally, the employees should be consulted.
Here are some of the main potential topics to discuss and consider.
- Health and safety
- IT support and cybersecurity/data protection
- Training and personal development
- Provision and maintenance of equipment
- Provision and maintenance of infrastructure
- Extent and nature of supervision/monitoring
When an employee wants to change working conditions
Currently, all employees with at least 26 weeks of service have the right to request flexible working. The government is considering proposals to allow all employees to request flexible working from their first day with an employer. There is expected to be further news on this next year.
Employers have three months to consider their request and can only refuse it for one of eight designated reasons. Realistically, these reasons need to be strong enough to stand up to an employment tribunal as that is where a refusal may lead.
Although the term “flexible working” is strongly associated with remote working, it can mean a lot more than that. For example, it can mean changes to working times, patterns and/or hours. Employees do not have to give a reason for making their request. Employers, by contrast, do need to give a reason for refusing it.
Specifically, employers have to give one of eight defined reasons for refusing it. These reasons provide a useful framework for employers navigating their way to a post-COVID19 new normal. Whenever you find yourself dealing with requests for flexible working, consider the following points.
Are you planning any structural changes to your business?
This should be a fairly easy one to answer. If you are going through a restructuring that may impact the employee’s role, then you can refuse the flexible working request until that is complete. The employee can, however, make the request again once the changes are complete.
- Is there sufficient work for the periods the employee proposes to work?
- Can work be reorganized amongst existing staff?
- Can you recruit additional staff to cover the employee’s absence?
These questions often go hand-in-hand. Many businesses have periods of relatively low activity and periods of relatively high activity. These periods often follow a predictable pattern. If an employee only wants to work during quieter periods, this may place an unreasonable burden on other staff.
In principle, you may be able to deal with this by recruiting additional staff. In practice, you may not find staff willing to work only during peak periods, at least not on a long-term basis. As a rule of thumb, the fewer the hours the employee wants to reduce, the harder it is likely to be to get someone to replace them. This is particularly true if you need them on-site.
If the employee has specific skills, then finding a replacement is likely to be even more difficult. In some cases, using freelancers may be an option. This does, however, bring other complications particularly if the employee’s work involves sensitive data. It may also bring substantial additional costs.
Would the request create additional costs?
In principle, if a request for flexible working would generate extra costs, then the employer is within their rights to refuse it. In practice, this may be something of a grey area.
For example, if the additional costs were minor, then they might not be seen as a sufficient reason to refuse an employee’s request. This is particularly likely if the company is large and/or highly profitable.
Would the request have a detrimental effect on quality, performance, or ability to meet customer demand?
In principle, if it is clear, or at least reasonably foreseeable, that a request for flexible working would have a detrimental effect on quality, performance, or ability to meet customer demand, then the employer has the right to refuse it.
In practice, it may be impossible to see what impact a request for flexible working will have unless you try it. In this instance, one approach would be to agree to the request for flexible working but monitor the outcome.
You should already have criteria in place for measuring an employee’s work quality and performance as well as customer satisfaction. If you do not, then you should consider the employee’s request a wake-up call to create them.
Once these criteria are agreed upon, then you can proceed with the requested flexible-working arrangement. If all goes well, then everyone will be happy. If it does not, then you implement the necessary improvement measures following the relevant legal process.
Bringing employees back after COVID19
Bringing employees back after COVID19 has the potential to be a highly emotive topic. On the one hand, some employers may strongly prefer their employees to be in a business workplace. On the other hand, preferences are not included amongst the eight designated reasons for refusing a request.
Realistically, there is usually nothing to be gained by employers getting into a head-to-head battle with employees. Even if employers do have the law on their side, the end result is likely to be a staff member leaving to find another employer that will support flexible working.
That being so, it makes sense for employers to support flexible working requests as much as possible even if, technically, they can find grounds for refusal. At the same time, they can look at ways to tempt staff back on-site for example with workplace-based social activities.
About the author
Chander Bagga is the Principle Solicitor at Valens Solicitors, who are a multi-service law firm who specialise a range of legal services for businesses and individuals.