FLEXIBLE WORKING AFTER COVID-19 : A GUIDE ON WHAT TO EXPECT POST - LOCKDOWN

A study commissioned by Tiger Recruitment, recently found 87% of employees have had new and positive experiences of flexible working due to the pandemic. With 52% of employees preferring the flexibility in choosing how they work, employers can expect a significant upswing in flexible working requests.

FLEXIBLE WORKING:

FORMAL AND INFORMAL REQUESTS

S.80F Employment Rights Act 1996 ("ERA") enables employees who have been employed for at least 26 consecutive weeks to make a formal flexible working request every 12 months.

If an employee is unable to satisfy the requirements of s.80F ERA, then he can make an informal request. Principally, this will be beneficial for an individual whose request was rejected prior to Covid-19, as acceptances are more likely, due to the uncertain length of the pandemic. However, employers must remain vigilant as requests of this nature are likely to become long term concerns for businesses. The procedure for undertaking requests should be clearly stated in the company's flexible working policy.

PROCEDURE FOR CONSIDERING REQUESTS

The ACAS code to flexible working requires employers to deal with requests in a reasonable manner. By doing so, employers may avoid potential constructive dismissal and discrimination claims.

To deal with requests reasonably, employers must:

.Discuss the request with the employee as soon as possible;

.Consider the request carefully; in doing so, weigh up benefits for the employee against the business impact of implementing the change; the grounds for refusal set out below may help you make an efficient business consideration;

.Consider current events as a trial period for flexible working arrangements; and

.Deal with requests within a 3 month period (extendable by agreement between the employer and the employee), including decisions on appeal.

Although employees have a right to request flexible working and to have their request dealt with in a reasonable manner, employees do not have a right to flexible working. A legitimate business reason will enable employers to reject a request on specified business grounds, namely:

.Burden of additional costs;

.Detrimental effect on ability to meet customer demand;

.Detrimental impact on quality and performance;

.Inability to recognise work among existing staff;

.Planned structural changes ahead; or

. Inability to recruit additional staff.

The tribunal rejected discrimination and constructive dismissal claims in Whiteman v CPS Interiors Ltd and others [2015] ET/2601103/2015, finding that the employer's legitimate business aim, based on the fact that the employee had to work together in the same room as other employees when deciding on designs, was a reasonable ground for rejecting the right to work flexibly.

MAKING DECISIONS DURING UNCERTAIN TIMES

We understand how difficult it is to make decisions facing up to the uncertainties of Covid- 19, from decisions on office premises, dealing with high number of customer requests and flexible working requests.

The negative implication of rising requests is the rise of concurrent requests. In that case, it is advisable you operate on a 'first come first served' basis, to ensure decisions are not tainted by discrimination. You further may find it difficult to reject requests at this given moment, especially if your new remote working measures have functioned effectively.

Given the influx of flexible working requests after Covid-19, employers must ensure all requests are considered reasonably. Especially, you should be wary of employees who need to care for themselves or are vulnerable individuals.

RISKS OF REFUSING A REQUEST ON

UNREASONABLE GROUNDS

You may find it necessary to refuse requests. When doing so, you must ensure the ground for refusal is not discriminatory as this could amount to constructive dismissal. In Shaw v CCL Ltd [2007] UKEAT/0512/06, judges found that refusing a request to work part-time and flexibly following the claimant's maternity leave amounted to indirect and direct sex discrimination and constructive dismissal, as the employee resigned because of the refusal.

If the refusal puts a group of workers at a particular disadvantage and the employer fails to objectively justify, this may give rise to indirect discrimination. For example, refusing a request by an employee whose request is linked to childcare responsibilities (Hacking & Paterson & Anor v Wilson [2010] UKEATS/0054/09/BI).

Employers must also be cautious of the protections provided by the Part-time Workers Regulations 2000 (SI 2000/1551). These regulations ensure part-time workers are not treated less favourably than full-time workers. Therefore, to avoid breaching these regulations, you must consider requests from all employees in the same manner.

Should you have further queries on flexible working matters or need assistance in drafting your company's flexible working policy, please do not hesitate to contact us.