Flexible working as a legal concept has existed in the UK since 2003. Yet since then, most employers have been reluctant to offer or fully utilise it for the benefit of their staff. What should and could happen now?
Since 30 June 2014, employees with at least 26 weeks' continuous employment have been able to make a statutory request, in writing, for flexible working, for any reason. If they do make a request, employers must deal with that request in a reasonable manner and notify the employee of the outcome (including any appeal) within a three-month period – unless that timeframe is extended by mutual agreement. Only one request can be made in any 12-month period, and if an employer wishes to reject a statutory request, it can only do so on one of the following grounds:
- the burden of additional costs;
- detrimental effect on the ability to meet customer demand;
- inability to reorganise work among existing staff;
- inability to recruit additional staff;
- detrimental impact on quality of work;
- detrimental impact on performance of employee;
- insufficiency of work during the periods the employee proposes to work; or
- planned structural changes.
Some employers, instead, or as well as, also offer a more informal approach to flexible working, to avoid the rigmarole or bureaucracy that can be associated with following the statutory scheme.
Options and benefits
Flexible working can take many forms; it’s not just about part-time working and job sharing. Flexible working can be achieved through the use of, or combination of, home-working, compressed working hours, annualised hours contracts, term-time working arrangements, sabbaticals and/or career breaks, or gradual retirement opportunities.
...including improved morale and productivity, better work-life balance, enhanced staff retention, wider recruitment and attraction opportunities, an overall reduced cost base and improved profitability. Yet, some employers still struggle with the premise of employees requesting to work more flexibly.
The past, present and the future
Whether it be the view that employees who work flexibly lack the drive and motivation to be productive and contribute to the business fully, or a general reluctance on employers to give up a sense of control, many employers to date have failed to grasp or engage with the positive side in allowing employees to work flexibly.
However, COVID-19 has challenged this viewpoint. Employees are likely to resist any attempt to impose a return to the old ways of working – given that COVID-19 forced all employers to rapidly adopt a flexible approach to working, whether that be from home or otherwise, and everyone has adapted to these new flexible ways.
Employers do therefore need to prepare themselves for an influx of flexible working requests in the post-lockdown world, if not before. A recent YouGov poll of 4,500 employees in fact found that 81% of respondents expected to work from home at least one day a week post-lockdown, with 33% expecting to work from home at least three days a week. Business giants such as Google, Amazon and Microsoft have already noted such a sentiment and declared their highly flexible working arrangements will continue for the foreseeable future. It is not unreasonable for employees, who have successfully managed through lock-down to balance their various childcare responsibilities or welfare responsibilities with their work-life, to expect or ask for this to continue. COVID-19 has given employees a taste of flexible working and for many it has transformed their working lives.
COVID-19 will therefore make it increasingly difficult for employers to turn down requests for flexible working. Lockdown has shown that employers can maintain excellent productivity rates, and high levels of efficiency whilst its workforce work flexibly. With the rapid rise in the use of tech such as Zoom, WebEx and Microsoft Teams, it is now easier than ever to host meetings and interact with colleagues, customers and clients for the benefit of all.
A study commissioned by Visier found that 31% reported that their work-life balance had improved since working flexibly. The International Journal of Economics reported that those that embraced flexible working suffered less stress, less anxiety and less fatigue. Whether it be spending more time with their family, having more autonomy over when to complete work-based tasks, less time and money lost to commuting or just spending a little longer on self-care, the sense of freedom and empowerment that employees have enjoyed from working flexibly during the pandemic has increased their wellbeing and happiness – something many will be reluctant to give back up. The continued rise in technological communication advancements will also continue to make remote working easier, making it harder for employers to find one or more of the legitimate business reasons to deny a flexible working request.
Offering a full range of flexible working and not just playing lip-service here will be a sign of a more progressive, innovative and forward-thinking employer.
When considering flexible working requests going forward, employers should therefore think carefully and consider the following:
- the government’s continued stance on working from home wherever you can do. For present purposes there is no immediate return to work for many employers, so working flexibly from home is now the new norm;
- whether or not any of the available business grounds are in fact available nowadays. Will there really be a detrimental impact on quality or performance – especially where there wasn’t through the period of lockdown?;
- whether there are any planned structural changes ahead, as a result of COVID-19 or otherwise, which may impact upon your ability to accept a statutory written request for flexible working;
- your existing policies and procedures making sure that all requests are dealt with in a reasonable manner. Do you need to update your policies, or adapt your approach to flexible working more generally? Employers are encouraged to start with a positive mindset, in that it will only be the rarest of cases that a request for flexible working is declined for clear business reasons. Employers should always demonstrate serious consideration to each and every request made, including the reason(s) for it and how it might be dealt with;
- the number of applications that may be received, and the order in which to deal with them. The best approach is to deal with applications on a first come first serve basis, and to ensure that all decisions are based upon genuine business reasons and are not tainted by discrimination or any other prejudice;
- the need to embrace flexible working more readily going forwards in recognition of the fact that COVID-19 has shown that it is possible to have an efficient, happy, flexibly working workforce;
- consider alternatives to the original request made – and whether there is a compromise that can be reached between parties. Retaining talent is fundamental in any employer’s business recovery plans going forward;
- the ability to explain any decisions to reject a request full and clearly so as to avoid upset.
In summary, as companies start to re-open their offices, they must ensure they have their policies in place now so they can ease through this potential new way of working, permanently.