The future of flexible working

Will the laws on flexible working change due to the COVID-19 pandemic? Richard Thomas and Toni Lewis, from the employment law team at our sister company, Capital Law, explore.

The Law

Under the Flexible Working Regulations 2014 (“Regulations”), employees have a statutory right to request flexible working, subject to certain eligibility criteria.

An employee who has been continuously employed for a period of at least 26 weeks is entitled to make a flexible working application. This application must be in writing, be dated, state whether the employee has previously made any such application to the employer,  and include the date of any previous applications.

Only one application per 12 months is permitted. Employers are under a duty to reasonably consider the request, but they can refuse the employee’s request if any of the 8 grounds set out in s80G of the ERA 1996 applies. The grounds are:

  1. the burden of additional costs,
  2. detrimental effect on ability to meet customer demand,
  3. inability to re-organize work among existing staff,
  4. inability to recruit additional staff,
  5. detrimental impact on quality,
  6. detrimental impact on performance,
  7. insufficiency of work during the periods the employee proposes to work, and
  8. planned structural changes.

Although the Regulations do allow an employee to apply for flexible working, there is no automatic right and the grounds for refusal are wide. Most businesses would be able to reasonably refuse a request under one of the grounds that suit their business.

COVID-19 pandemic

The Covid-19 Pandemic has changed the way many employers and employees view flexible working. When Boris Johnson announced that the UK was going into lockdown on 23 March 2020 and that businesses should operate remotely if they could, many businesses who have not been open to flexible working in the past found themselves faced with a decision – try to continue to trade by allowing their employees to work from home or cease trading while in lockdown. Suddenly, many businesses that didn’t have a flexible working policy began to allow their employees to work from home and found that the business operated just as well, if not better.

As the vaccine is becoming more accessible and we start to ease out of lockdown, it is likely that the worldwide pandemic will have changed the way that we work forever.

Most businesses already operate a flexible working policy, which incorporates the statutory requirements, as well as offering remote working or flexi-time as a discretionary benefit. During the pandemic, many businesses have allowed their employees to work remotely and work varied hours to accommodate childcare commitments and support their general wellbeing. Many employees may want to continue their current routine when the UK is out of lockdown. Legally, once the Government has lifted the “stay home” requirement, employers can request that their employees go back to working from the office and working 9 to 5, as per their employment contract. If the employee refuses, this could be considered breach of contract, and result in dismissal.

Many employers will embrace the new “normal” of flexible and remote working. Their flexible working policies will be updated in view of clear evidence that their business can operate just as well remotely, and this, in turn, will attract talent and retain staff.

As it stands, employers have 8 statutory reasons to reasonably decline a request for flexible working. However, if a business has operated successfully throughout the pandemic, it may be more difficult for an employer to prove to the Tribunal that they have declined the request due to an inability to meet customer demand, or that the request will have a detrimental impact on performance and quality. An employer who does decline such a request may also be at risk of a claim for sex discrimination.

Will the law change?

The Chartered Institute of Personnel and Development (“CIPD”) has launched a new campaign called “FlexFrom1st” which encourages employers to support flexible working for all and the right to request flexible working from day one of employment. CIPD is also calling for a change in the law to make the right to flexible working a day-one right for all employees, as well as revisiting the business reasons for rejection.

If the law is changed to incorporate a day one right to flexible working, this will give employees a statutory right to request flexible working from day one of their employment, but it will not create an automatic right to flexible working. The employee will still have to make a formal request to flexible working and the employer can still reasonably refuse the request on one of the 8 grounds.

If you have any questions about any of the above, please don’t hesitate to get in touch.

This article was initially published on the website of our sister company, Capital Law.