Bracing employers for post-pandemic flexible work requests

By Elliott Lauder - 30 April

It goes without saying that employers are currently grappling with the very sudden necessity of moving their workforce to remote working and adapting their businesses to fit around employees working from home. But will this taste of flexible working lead your employees to submit a wave of flexible working requests once the pandemic is over and normal office life resumes?

Without a crystal ball it’s difficult to assess whether employees will be tired of their home offices by the end of the pandemic and yearn for the return to the office, or whether there will be a sharp increase in employees wishing to carry on with the current flexible arrangements. However, in case the latter does come true in the coming months, here is a reminder of which employees are eligible to make formal flexible working requests and the statutory prescribed reasons which can be applied to reject the request. Of course, there is nothing to stop employees and employers from discussing informal requests outside of the rules below. 

A flexible working request can be submitted by an employee who has over 26 week’s continuous employment and who has not previously submitted a request in the preceding 12-month period. The employee can seek to change their working hours, the times at which they are required to work, and their place of work in a formal flexible working request.

Your response to the employee’s request must be dealt with in a ‘reasonable manner’ (not specifically defined), within three months of the date on which the request was made, and only refused if one or more of the following grounds can be relied upon: 

• 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.
• Planned structural changes.
   

A number of these reasons may be difficult to apply to post-pandemic flexible work requests, particularly if the employee is able to prove that the quality of their work performance had not been negatively impacted by working from home during the pandemic.

However, this wave of flexible work requests may not materialise once normal life resumes. Employees could be itching to return to a desk slightly further away from their sleeping quarters and to see their colleagues faces in a setting that is not a video conferencing platform.

Only time will tell.

If you would like to read more articles on employment law red flags, opportunities and foreseeable issues during Covid-19, click here.