The future of flexible working

By Marika Monaghan, Associate Solicitor

Prior to the pandemic 68% of British workers had never worked from home. However, according to a recent YouGov survey, 81% of employees who worked at least some of the time from home following the outbreak want to be able to continue to do so after the pandemic has come to an end. 

From June 2014 an employee who has at least 26 weeks’ continuous service has the right to make a statutory request in writing for flexible working, although they can only make one such request in any 12-month period. The employer has a duty to deal with the request in a reasonable manner and to notify the employee of the outcome within a 3-month period unless the deadline has been extended by mutual agreement. The employer can only refuse the request on one of the following grounds:

• the burden of additional costs;

• detrimental effect on ability to meet customer demand;

• inability to reorganise 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; or

• planned structural changes.

Although flexible working has existed as a legal concept since 2003, prior to COVID-19 the uptake of flexible working had been a lot slower than anticipated. To address this, in December 2019, the Government announced its intention to introduce changes to flexible working legislation to bring in what is often referred to as ‘flexible by default’, where jobs would be deemed to be flexible unless the employer can justify otherwise. Although this change has not been formally implemented, for many businesses the pandemic has, in any event, led to the adoption of flexible working patterns by default at least for the time being. 

Although from March 2020 the upsurge in employees working from home may have been borne out of necessity, it has given employers the opportunity to explore the various potential advantages and disadvantages of a working model that they may have previously discounted. 

From an employer’s perspective there are several potential advantages of remote working such as

• Savings to office space and cost

• Access to a wider pool of workers (due to geographic location or employees who need to fit work around other responsibilities such as childcare)

• Better employee retention due to employees’ achieving a better work/ life balance and higher job satisfaction

• Reduced stress and sickness levels

• Possible increased productivity

• Savings in costs and time for reduced commuting and the associated environmental benefits

Some of the potential disadvantages of remote working include

• Difficulty in managing remote workers and monitoring performance

• Loss of team cohesion

• Increased risk of sense of isolation

• Increased telecommunications costs and higher data security risks

Given that that there are advantages and disadvantages to working remotely, it is not surprising that a significant proportion of companies, (two thirds of those surveyed according to CIPD, the professional group for Human Resources staff), are now developing hybrid working models that will allow employees to work some of their time from home and the remainder of their time in the office.

A number of large companies, including Google, Virgin Media, Aon, John Lewis, HSBC and Natwest Bank have publicly announced their commitment to a hybrid working model. 

Given the emerging trend towards flexible working models, it is more important than ever that employers can deal appropriately with flexible working requests. Introducing a regime of flexible hours and/or organising a phased return of their employees may also assist the employer in complying with social distancing regulations which remain in the workplace. 

However, the employer will need to ensure that it deals with requests for flexible working sensitively and fairly. It should consider its employees’ personal circumstances to avoid discriminating against a particular employee or group of employees.  Sometimes an employer may encounter challenges in balancing the competing needs of its employees and may wish to seek legal advice regarding the best way to deal with these thorny issues.

Any changes to an employee’s working hours or place of work should be confirmed in writing to avoid ambiguity or misunderstanding. If the employer does not feel able to grant a request for flexible working, it should ensure that its reasons for refusing falls within one or more of the 8 permitted grounds listed above and that this is confirmed in writing. 

Sometimes an employer may wish to make changes to some or all its employees’ hours and place of work and the need to do so may become more acute following the pandemic. Generally, to make such changes unilaterally would amount to a breach of contract. It is therefore recommended that an employer seeks their employees’ agreement and that they seek legal advice if they experience any resistance from their workforce before implementing any fundamental changes to their employees’ working patterns.