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Statutory Flexible Working Requests in a Post-Covid World

For many employers, most if not all of their employees at some point, will have been working at home during the pandemic.

Lockdown in its various forms has now been going on for so long that for many people working at home is now their ‘normal’, and no longer ‘new’.

Whilst the benefits of working at home were much championed during the early days of the pandemic, with time, businesses and employees have gained an informed perspective on what works for each of them and what doesn’t. 

As the vaccine programme gains momentum and the road out of lockdown becomes clearer every day, we can now see the light at the end of the tunnel for businesses and employees who want to be back in the workplace. 

Forward-thinking businesses have taken the time to plan their future workforce strategies and determine what model around remote/on-site working will be best for their business, informed by all drivers to include feedback from their people.  This thinking will prove invaluable to the companies that have done it, as they start to receive, as so many employers will, increasing requests from employees to work differently in the future. There’s a lot for employers to consider if an employee does ask to change the way they work.

Our guide explains how employees should raise a statutory request to change how they work and how employers should respond.

If an employee asks to work differently, for example, more days from or wholly at home, what is this called?

It’s called a Flexible Working Request

There are strict rules around Statutory Flexible Working Requests which include:

  • It must be in writing and dated
  • The change to working conditions being sought;
  • When the employee would like the change to come into effect;
  • What effect, if any, the employee thinks the requested change would have on the employer and how, in their opinion, any such effect might be dealt with; and
  • A statement confirming the employee is making a statutory request and if and when they have made any previous application for flexible working.

It is important to be aware that employees can make a statutory or non-statutory (informal) request. If your employee does not follow the Statutory Flexible Working Request procedure detailed above, you won’t have to treat it as a formal request and are not obliged to follow the steps which we will describe below in responding to the request.

If the request is informal, you have several options:

  • you can accept the request or;
  • refuse the request (as long as it isn’t discriminatory) or;
  • advise the employee to submit a Statutory Flexible Working Request or;
  • advise their request will be treated as a Statutory Flexible Working Request if the employee agrees.

Which staff are eligible to request Statutory Flexible Working?

Only your employees are eligible, and they must have been employed for 26 consecutive weeks. Employees can only make one Statutory request per year.

What changes can be requested?

There are a wide range of changes that an employee is entitled to ask to be considered.

  • Change or reduce hours of work
  • Change the place of work
  • Split place of work between home and office
  • Job share with another person
  • Compress full-time hours into fewer days
  • Have a degree of self-controlled flexitime

What process must an employer follow after receiving a request?

An employer must deal with the application ‘in a reasonable manner’.

The Code of Practice on Handling in a Reasonable Manner Requests to work Flexibly provides guidance on what an Employment Tribunal will consider “reasonable” in making a decision about the request.

You must:

  • Give real thought to the request;
  • Provide an outcome within three months; and
  • Discuss it with the employee and allow a colleague to be present.

Can I refuse a Flexible Working Request?

Yes, but an employer is only entitled to refuse the application based on any of the following grounds:

  • the burden of additional costs,
  • detrimental effect on ability to meet customer demand,
  • inability to re-organise work among existing staff,
  • inability to recruit additional staff,
  • detrimental impact on quality,
  • detrimental impact on performance,
  • insufficiency of work during the periods the employee proposes to work,
  • planned structural changes, and
  • such other grounds as the Secretary of State may specify by regulations.

Instead of simply refusing the request – if an employer is not sure about approving the request, a trial period can be offered, or the request can be granted subject to frequent reviews.

What risks do employers face in refusing an employee Flexible Working Request?

Flexible Working Requests should always be considered comprehensively and from all angles. If a request is going to be refused, be sure there are good reasons. An employee can bring a claim in the Employment Tribunal against their employer if their request is ignored, if the statutory procedure is mishandled or if the employer rejects what may ultimately be found by the Employment Tribunal to have been a perfectly reasonable and workable request.

In the post-pandemic world, if an employer wants their workforce to come back into the office fully or in some capacity, it will be important that they take the time to think through the impacts, and prepare a business plan to help inform and support how to respond to flexible working request in an efficient, fair and consistent manner.

In working through your strategy, there are several things to consider in deciding whether the quality or performance of your workforce would be impacted by them remote working wholly or in part on an indefinite basis:

  • Have you experienced less innovation in your business due to working from home?
  • How key to the maintenance and development of your business culture is having people physically together?
  • Will only having part of the workforce in the office create a conflictual dynamic: will some employees have to pick up others’ physical tasks – printing/scanning/filing?
  • Has mentoring and collaboration suffered while staff were at home?
  • Have employees found it difficult to know when to switch off from work? Has it had any detrimental mental health impact on your workforce?
  • Whilst everyone was at home, client and consumers might have been happy with video calls, but what if they want one-on-one interactions again?

What other risks are there to think about when considering a Flexible Working Request?

It’s important to keep in mind that it is unlawful to subject an employee to a detriment or dismiss them for making a statutory flexible working request.  

Equally, it is unlawful to discriminate against an employee in deciding whether or not to grant a request – and that’s the case even if the request was informal.

For example, refusing all applications for part-time working could be deemed indirect sex discrimination. Unless the employer can justify the policy by showing they have a legitimate and proportionate business aim, this will be indirectly discriminatory to women. The statistics show that women are still more likely to combine paid employment with caring responsibilities. Bear in mind; it could also be deemed disability discrimination if the proposed arrangement you refused could amount to a reasonable adjustment. For a free consultation on any of the issues raised in this blog or around any other HR or employment law matter connected with your workplace return to strategy don’t hesitate to reach out to our expert employment law team on legal@lexleyton.co.uk


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