4th September 2020
As part of our series of publications looking at the Future World of Work we look at the impact of COVID-19 on flexible working requests.
The Coronavirus pandemic has had a major impact on working practices over the last five/six months. With a significant increase in the number of employees up and down the country working from home, will this mean that employers will be faced with an influx of flexible working requests from these employees as they re-open their offices and encourage their staff to return to the workplace?
In this article, we consider the law behind flexible working requests and consider how the future world of work will shape up following this mass adjustment to home working, together with highlighting some of the traps for the unwary.
A university survey entitled Working from Home during COVID-19 Lockdown Project, has highlighted a significant rise in the number of employees working flexibly; it shows that 86% of those surveyed had been working from home at some point during the Covid-19 lockdown.
Most respondents expressed that they would prefer to work more flexibly in the future (including 52% of all parents and 66% of non-parents), after benefitting from a better work-life balance, increased productivity and improved wellbeing whilst working from home. Of those respondents who are parents, it showed that 64% of fathers and 59% of mothers would like to reduce their hours to spend more time with their family.
Similarly, a recent YouGov poll of 4,500 adults (of whom almost 2,400 were workers) found that 81% of respondents expected to work from home at least one day a week post-lockdown, with 33% expecting to work from home at least three days a week. 
Requests for flexible working under the statutory scheme can be made by all employees with at least 26 weeks’ continuous employment (i.e. not agency workers, consultants or contractors).
Prior to 30 June 2014, employees could only use the statutory procedure if their purpose in doing so was to enable them to care for a child or an adult. This has now been removed. The request can now be made for any reason and can relate to a change in: hours (e.g. reduce hours or compress hours); times required to work; and/or place of work (as between home and any of employer’s workplaces).
The employee triggers the procedure – the request must be in writing and only one request can be made in any 12-month period (although further informal requests could be made). The request must: state that it is an application made under the statutory procedure; specify the change and when they wish it to take effect; and explain what effect, if any, the employee thinks the change would have on the employer and how any such effect could be dealt with.
Employers must deal with a request in a “reasonable manner” within three months (but note that this can be extended by agreement).
Acas guidance recommends that employers consider requests on first-come, first-served basis. That of course needs to be balanced with obligations under the Equality Act (such as making reasonable adjustments in relation to a disability) – more on that below.
Employers should be mindful of whether any of the employees making a flexible working request are protected under the Equality Act before deciding which ones to reject or accept. Turning down a flexible working request (legitimately or otherwise) from such an employee may be deemed:
When considering flexible working requests as offices re-open and employees are encouraged to return to the workplace, employers should consider the following:
With many roles which cannot be performed remotely because they require the employee to be physically present in the workplace, remote working requests may be impossible to accept. There are also many roles which require employees to be available at peak hours due to customer demand, so flexible working requests may be a challenge to accommodate in this context. As set out above, employers should only reject flexible working requests from employees in these roles where they are able to rely on at least one of the eight business reasons outlined above. However, even for sectors where roles cannot be performed remotely or flexible hours/patterns of working are challenging to implement (such as retail, manufacturing, hospitality, the care sector), there may still be some roles which are suitable for remote working and employers must not simply write off a request because of these reasons.
The impact of the coronavirus pandemic on our workforces has been huge and will continue to shape how we work (and the typical office set-up) as government restrictions are eased and workplaces continue to reopen – the statistics do not lie and employers cannot ignore the inevitable. We expect that employers will be more willing to consider flexible working as a viable option and may even begin to encourage it because of the many benefits it can bring to employees and employers alike (reduced cost of offices for one!). That being said, the law has not changed and businesses can reject any flexible working if one or more of the eight business reasons for doing so truly applies, even in a post-lockdown context – we may just expect more employees to push back in response.
Please feel free to contact a member of our employment team below or your usual Walker Morris contact should you have any queries regarding flexible working, or dealing with new flexible working requests. We can help you consider what the implications of accepting or rejecting the request may have on the employee making the request and on the wider workforce, as well as any other related queries you may have.
Visit our Future World of Work hub here.
Head of Employment & Immigration