The sudden and dramatic spread of COVID-19 earlier this year prompted employers from every corner of the UK to act quickly to get their workforce set up to work remotely from their own homes. The current guidance, seven months later, is back to working from home where possible. Whilst some employees will be eager to get back into the office environment, others will have realised that working from home suits them more than traditional fixed hours’ office working.
Here we explore flexible working requests (FWRs), the effect of the coronavirus outbreak on flexible working and how different companies have reacted. It also looks to the future to perhaps a new way of flexible working as outlined in the Employment Bill.
1. The request
An FWR is a written request from an employee to their employer to vary the terms of their employment in relation to the number of hours they work, and when and where they work them.
Examples of FWRs include a request to job share (two people do one job and split the hours); to work from home; to work part-time; to work compressed hours (full-time hours but over fewer days); to work flexitime (the employee chooses when to start and end work within agreed limits); to move to annualised hours (the employee has to work a certain number of hours over the year but they have some flexibility of when to work); to have staggered hours (the employee has different start, finish and break times from other workers); or perhaps a request for a phased retirement. This article focuses primarily on the request to work from home.
To be eligible for the statutory right to submit an FWR, the employee must have at least 26 weeks continuous employment and any request must be submitted to the employer in writing. There is nothing to stop an employee with under 26 weeks service from making an informal request to their employer, but this would not qualify as statutory request.
Note - the statutory right is a right to request flexible working and not a right to flexible working.
Once the FWR has been submitted, the employer must consider the request in a reasonable manner by discussing the possible changes with the employee and reaching a decision within three months (this may be extended with agreement from the employee). Once the FWR has been considered, the employer may accept or reject the request:
Accept - if the terms are agreed and accepted, the new pattern will be a permanent contractual variation to the employee’s employment. The employer is obliged to issue a ‘section 4 statement’ (pursuant to section 4 of the Employment Rights Act 1996) to reflect the changes and it is good practice for an employer to issue a new contract or a letter setting out the new terms.
Reject - an employer may, after reasonably considering an FWR, reject the request. There are eight specific grounds entitling an employer to reject a request, which include 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; detrimental impact on performance; insufficiency of work during the periods the employee proposes to work; and planned structural changes. When rejecting an FWR, employers should always be wary of potential discrimination.
Previously, an employer may have readily presumed that any flexible working would have a detrimental impact on quality or a detrimental impact on performance without actually having evidence either in support or to the contrary and rejected requests on those grounds - which they would be entitled to. The Trade Union Congress estimates that one in three FWRs are rejected (as of September 2019). How has the forced shift to remote working impacted employers and employees positions in relation to FWRs?
Working from home has opened many people's eyes in terms of the work/life balance, no commuting, saving money, positive environmental impact and increased productivity, amongst other benefits. However, although many employees are currently home working, their actual contractual places of work haven’t changed and they will be expected to return to their previous working arrangements eventually. Because of this, employers are seeing employees submit FWRs to work from home, whilst actually working from home.
As explained previously, employers could (and can still) reject an FWR on one of the eight specific grounds but will it be harder for them to argue reasonably that working from home negatively impacts quality or performance?
Many employers have invested heavily in remote working technology and utilised software such as Zoom and Microsoft Teams to keep colleagues connected. On top of this, many have seen output and productivity bounce back to near normal levels after an inevitable initial slump, and employees will be well aware of this. It is worth remembering, however, that this is a strange period of time for everyone involved, employees and employers included, and employers may (reasonably) be reluctant to sign off on drastic changes before anyone has had the chance to get back in the office.
All employers will have the option to reject FWRs using one of the eight specific grounds, but this could have a detrimental impact on employee’s motivation/interest and make them feel isolated or undervalued, especially if they are currently working remotely and may not understand why they cannot just carry on doing that. Employers could potentially lose talent, as some employees may be encouraged to change jobs to a company that promotes flexible working. It might be sensible to consider one of the following two options before rejecting FWRs:
1) Extend the time limit
One option available to employers is to agree with the employee to extend the three-month decision period. This should, ideally, be agreed during the initial three-month decision period but may be done retrospectively in the three months after the expiry of the initial decision period. The agreement should be recorded in writing to reflect the agreed extension. There is no limit to the extension but it should be reasonable in the circumstances. Extending the decision period will buy employers more time to evaluate requests once home working has been functioning for a longer period of time or even, guidance permitting, once employees are back in the office.
2) Trial periods
Although not expressly permitted or prohibited by statute, trial periods are often used as a compromise with FWRs. A trial period could be beneficial to both parties and might be the only basis on which an employer will accept an FWR. The extent of the trial period should be agreed between the parties in terms of its duration and also what factors will be considered at the end of the trial period. This option gives employers the opportunity to evaluate the arrangement and its impact and sustainability before making a final decision but also benefits the employee.
Many FWRs will be submitted whilst the light evenings and warm weather we had over the summer are still front of mind. It may be the case that, when other employees are back in the office and the colder, darker winter months are with us in earnest, the employee misses the office and the change of scenery. A trial period would allow the employee to revert to their previous working arrangements after the trial period if they so wished.
Employers may reject the FWR at the end trial period at the end of the agreed period, having considered the success of the trial period and by relying on one of the eight specific grounds. It may be the case that it is easier to make reasonable arguments for rejection if the employee has already been through an unsuccessful period of flexible working. If the arrangement works for both parties then the arrangement can be made permanent by the employer accepting the FWR.
Notwithstanding the above, it is clear that remote working is very much a business-by-business matter and not applicable to every industry or sector. For example, manual jobs or factory working obviously can’t be done remotely, but how have different office-based businesses reacted to remote working, both immediately and in the longer term?
Google and Facebook rolled out remote working in March and now expect that some of their workforce will never return to the office. Both companies have highlighted the importance of having space for their employees to collaborate and, therefore, will keep office spaces available.
Jack Dorsey, the CEO of Twitter, also announced that employees will have the option to remain at home indefinitely if they wish to. However, in a similar fashion to Facebook and Google, Twitter will be keeping office space for those who wish to utilise it.
In comparison, the CEO of Netflix, Reed Hastings, is against working from home and wants employees back in the office ‘12 Hours after a vaccine is approved’.
Closer to home in the UK, differing examples can be seen with:
Linklaters allowing employees to spend up to half of their time at home on a permanent basis.
Goldman Sachs in London had, before the onset of the second wave, begun to bring employees back into the office on a rotation basis (which is a common approach), even offering incentives such as cycling protective equipment, free food and use of an on-site nursery.
In March 2018, the Department for Business, Energy and Industrial Strategy (BEIS) set up the flexible working taskforce. Its aim was to “widen the availability and uptake of flexible working”. With the support of the taskforce, Conservative MP, Helen Whately, introduced the flexible working bill in July 2019 which stated that flexible working should be the default position for all employees. This was then included in the Employment Bill, introduced as part of the Queen’s Speech on 19 December 2019. Like with the flexible working bill, the Employment Bill will (amongst other things) make flexible working the default unless employers have a good reason not to (it remains to be seen what ‘good reason’ will be). This, effectively, turns the position on its head and, when it was announced, it sounded like it would be an uphill battle to create such a culture shift. However, COVID-19 has, out of the blue, changed that and it does not seem such a crazy idea after all.
That said, the Employment Bill 2020 is yet to get a date for its second reading and so such a change may not happen any time soon. In the meantime, maybe employers should start to look at FWRs in a new light knowing what is potentially on the horizon. If they do that and stand out from the crowd, maybe they will weather the storm better than others.