One of the outcomes of the Covid-19 pandemic and the subsequent lockdowns/work from home edict is how the workplace has evolved with working from home and hybrid working being feasible for many employees. With many employees being fully vaccinated and self-isolation being somewhat relaxed, you may, as an employer, be considering asking employees to return to the office.
However, many employees will be unhappy about being requested to return to the office and may decide to make a request for flexible working so they can remain at home or just to achieve a better work/life balance.
There is no requirement for an employer to agree to a flexible working request, however, it is important that employers are aware of their obligations when considering one.
1. The employer should objectively deal with the request in a reasonable manner.
An employer should invite the employee to a meeting to discuss their request and permit them to bring someone with them if they so wish.
An employer should weigh up the benefits to the employee and the business as well as the disadvantages of implementing the proposed change.
2. The employer should notify the employee of its decision within a 3-month period of the initial request.
It is good practice to explain the reason for rejection in writing partly so there is no confusion regarding this timescale point.
3. An employer is permitted to reject a request for flexible working, but it can only be for one or more of the following reasons: –
- the burden of additional costs
- an inability to reorganise work amongst existing staff
- an inability to recruit additional staff
- a detrimental impact on quality
- a detrimental impact on performance
- a detrimental effect on ability to meet customer demand
- insufficient work for the periods the employee proposes to work
- a planned structural change to your business
If the employee’s request is unworkable then consider if a compromise can be reached or whether a trial period is worthwhile. Offer the opportunity to appeal the decision.
Whilst this isn’t an obligation an employer should consider the risks of rejecting a request for flexible working. The main risk is that the reason/decision could amount to a ‘provision, criterion or practice’ which puts certain individuals at a particular disadvantage. In a flexible working scenario, the risk is higher with female and disabled employees as the ‘provision, criterion or practice’ could amount to an act of indirect discrimination. A rejection of a flexible working request could also amount to an act of direct discrimination or a failure to make reasonable adjustments.
Further, if a request is rejected an employee may decide they have no choice other than to resign in response and may decide to pursue a complaint in the Employment Tribunal for constructive dismissal.
While there will be many occasions where employers will have little choice but to reject a flexible working request, think carefully before reaching that decision and comply with the obligations. If your business requires assistance in dealing with flexible working requests or with updating its policies on flexible working or hybrid working, then please contact us or telephone 01483 303636 to see how we can help you.
