Siobhan Murphy
Posted on 15 Sep 2020

How should employers handle flexible working requests following lockdown?

[Read time: 4 minutes]

The COVID-19 pandemic and lockdown saw a large percentage of the UK working from home. This shift impacted groups within society in different ways, with many forced to juggle full-time caring responsibilities with work. However, the recent lockdown has caused a fundamental shift in the attitudes of many workers, including their wish for a more flexible working pattern and improved work-life balance. As a result of this, following the Government's cautious encouragement to workforces to return to the workplace, many employees may request to work flexibly in the long term. This article considers how lockdown may impact an employer's management of such requests.

How should Employers Handle Flexible Working Requests Following Lockdown?

16 March 2020 marks the date that lockdown was enforced in the UK. Many employers had already made the decision to ask their workforce to work from home in anticipation of such restrictions being imposed, particularly in large cities where a majority of staff relied heavily on busy public transport links to commute.

Despite restrictions continuing to be imposed, most recently prohibiting social gatherings of more than six people, the Government's stance on returning to work has changed. It is now the case that workforces are being cautiously encouraged to return to the office.

However, with COVID-19 cases on the rise, and many having become used to the increased flexibility provided by working from home, it is likely that many employees will seek to request to work flexibly in some form despite the government guidance.

Effect of flexible working during lockdown

There has been an abundance of commentary on the impact that working from home has had on various groups within society. Challenges stemming from school closures and a subsequent rise in the burden of unpaid care have forced many employees to juggle homeschooling and unpaid caring responsibilities with their job.

It has been suggested that lockdown has had a disproportionate effect on women, who statistics show are more likely to take on such unpaid care responsibilities. However, research also suggests that lockdown may have helped to improve statistics regarding childcare. According to research undertaken by the Fatherhood Institute, almost two-thirds of fathers would like to continue to work flexibly to spend more time with their family. In June 2020, the Office for National Statistics published data which demonstrates that, in the early months of lockdown, men’s childcare hours increased by an average of 58%. Previous initiatives to encourage this, such as the introduction of shared parental leave, have been unsuccessful in attracting a sufficient uptake to achieve the same results. Last year, a study showed that only 1% of eligible parents took shared parental leave.

In addition, despite the difficulties that lockdown has introduced, copious polls and surveys circulated on social media seem to support that many employees wish to work more flexibly in the future. Whilst there are certain situations where flexible working is less appropriate, many employers have already announced that they are changing their way of working going forward.

In the light of this, we anticipate that employers who have not already considered some form of flexible working, will receive an upsurge of flexible working request once office working is fully readopted. How to respond will depend entirely on the business in question, but the legal obligations of the employer are set out below.

What is the law on flexible working requests?

Employees who have accumulated at least 26 weeks' continuous employment are eligible to make one written flexible working request in any 12 month period. Once received, an employer is required to deal with the request in a reasonable manner, which will likely involve arranging meetings with the employee to discuss their request and any concerns. An employer has three months to respond from the date of the request, unless both parties agree to extend this time limit.

An employer may only refuse a request on one or more of the following eight grounds:

  1. the burden of additional costs;
  2. the detrimental effect on ability to meet customer demand;
  3. an inability to reorganise work among existing staff;
  4. an inability to recruit additional staff;
  5. the detrimental impact on quality;
  6. the detrimental impact on performance;
  7. the insufficiency of work during the periods the employee proposes to work; or
  8. any planned structural changes.

Given that many employees have been working from home for the majority of the summer, they may be an assumption that they have already successfully proven to their employer that home working is possible. In some cases, this may be correct. However, some employers may seek a return to normality in terms of office hours and presenteeism for various reasons. An employer who takes this course of action will need to produce evidence as to why continuing to allow the extent of flexibility currently in place would not work for the business in the long term, for example:

  1. client complaints or client requests;
  2. reductions in productivity;
  3. the need to schedule virtual meetings alongside physical meetings;
  4. the need for junior staff to be supervised;
  5. the problem of a few employees in the workplace taking the burden of mundane physical tasks; and/or
  6. difficulty allocating tasks fairly between workplace-based and home-based staff.

Finally, whilst employers should be consistent with how they manage requests for flexible working, they must also be aware that some requests may carry with them the risk of an indirect discrimination claim. For example, a working mother may request a variation to her working hours due to childcare, or a disabled employee could request reasonable adjustments. Employers can only justify indirect discrimination where the refusal of the request is a proportionate means of achieving a legitimate aim. Requests such as these should be managed with particular care.

Key Points for Employers

With so many employees reporting positive experiences of home working, an employer who wishes to reject flexible working requests will need take particular care when explaining the reasons for the refusal. The type of role and business will obviously have a huge impact and there will always be certain roles where flexible working may never be possible. In any event, it is key to deal with any request reasonably and take the time to listen to the employee's suggestions and proposals.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Siobhan Murphy to discuss any issues you are facing.