Compromise is the perfect solution to flexible working requests

A Cheshire-based employment law specialist believes compromise is the ideal solution to flexible working requests.

The goalposts shifted considerably during the coronavirus pandemic with almost half of adults working from home.

According to data from the Opinions and Lifestyle Survey (OPN), more than eight in 10 workers who had to do their job from home during COVID-19 planned to hybrid work – a mix of working from home and their company’s office – after the pandemic was over.

Since then, the proportion of those hybrid working has indeed risen from 13 per cent at the start of the year to 24 per cent in May.

Sophia Liu, member of the employment law department at Warrington-based Watsons Solicitors, said: “More and more people are considering their options when it comes to flexible working, and employees have the right to make a request to their employer.”

Any request made to an employer must be considered if the employee:

• Is classed as an employee
• Has worked there for at least 26 weeks
• Has not made any other flexible working request in the last 12 months

Sophia added: “All employees, including carers, parents, those returning from maternity leave and employees who do not have children, have exactly the same rights when it comes to a flexible working request and all such requests should be treated the same to avoid issues such as unlawful discrimination.”

An application should be in writing, and include the following information: 

• The date of the application, the change to working conditions the employee is seeking and when they would like the change to come into effect
• What effect, if any, the employee thinks the requested change would have on the employer and how, in their opinion, any such effect might be dealt with
• A statement that it is a statutory request and if/when the employee has made a previous application for flexible working

The employer must:

• Look at the application fairly, following the code of practice on flexible working requests
• Make a decision within a maximum of three months

The code of practice will help employers deal with applications made under the Employment Rights Act 1996.

Sophia explained: “Consideration should be made towards the benefits for both employees and the business of any requested changes in working conditions, as well as any adverse effects these may have.

“Once a decision is made, the employee must be notified, ideally in writing to avoid any confusion over what has been agreed.

“If an employee’s request is acknowledged, or accepted with modifications, discussions should take place between employer and employee over how and when the changes will be implemented.”

If the request is rejected, the employer must do so for one of the following business reasons:

• The burden of additional costs
• An inability to reorganise work amongst existing staff
• An inability to recruit additional staff
• A detrimental impact on quality
• A detrimental impact on performance
• A detrimental effect on the ability to meet customer demand
• Insufficient work for the periods the employee proposes to work
• A planned structural change to the business

If an employer rejects the request, it would be prudent to include within an outcome letter, any factual evidence the employer has considered when deciding what business grounds apply. Ideally, an employee should be allowed to appeal such a decision. 

Sophia feels that amicable negotiations are a key starting point for both employers and employees.

She said: “Reaching a compromise is important in any process and this is certainly one that benefits from both parties meeting in the middle where possible.

“There might be perfectly good reasons why an employer can’t accept the initial proposal of an employee but talking it through can often find an alternative solution.

“For example, if an employee wants to reduce the number of days they work and has requested particular non-working days but this does not work for the company – i.e. the ones they have requested are particularly busy – then a solution could be to offer different times instead. 

“It all comes down to having a meaningful discussion with employees to see what works for both parties and whilst it is not an obligation for an employee to state the reason for their request, understanding those reasons may certainly help both parties in finding an alternative solution. 

“This will also show that you are a reasonable employer, and it will strengthen the working relationship. 

“If companies are particularly concerned about whether the proposed flexible working request will work effectively in practice, they can offer this on a trial period to see if it works.”

On the bigger picture, Sophia continued: “Covid has changed how everyone works and a lot of people are looking for an employer that is flexible.

“People are applying for jobs now expecting prospective employers to offer flexible or hybrid working, and it might be a case of companies missing out on talent if they can’t, or won’t, offer it.”

To speak to someone at Watsons Solicitors about flexible working requests, please contact enquiries@watsonssolicitors.com or call 01925 571212.

Watsons Solicitors, which has been established for more than 60 years, specialises in family law, employment law, wills and probate, and conveyancing.

The team of experienced solicitors holds various accreditations and memberships of professional bodies relevant to their expertise, while the firm’s partners oversee all areas of work.