A guide to flexible working rules

How flexible work has changed

Methods and habits of working have significantly changed for a large proportion of the working population as a result of Covid-19. For those who are able to, working from home has become the norm and, for many, it’s something that would be welcomed as a permanent change. Employees have enjoyed less commuting time, more time to spend with family (school/nursery drop offs) and more opportunity to exercise. There also seems to be a shift towards an outcome focussed approach rather than hours focused approach – employers perhaps acknowledging that it’s more important that the job is done well than bums being on seats.

Dads across the country will have also enjoyed greater flexibility in their working lives – many will have been able to help with the school run when previously they would have been commuting to the office.

How is it going to continue – and will it?

When the government relaxed restrictions and allowed workers back into the office, two key questions for employers were 1) should staff be allowed to continue working from home full time/some of the time/none of the time and 2) if not for all of the time, how would flexible working requests be dealt with, especially if the employers approach would result in a landslide of requests?

This was an unprecedented situation for employers. They were used to flexible working requests only being submitted occasionally – perhaps a returning parent from shared parental leave, or an employee wanting to spend more time caring for a relative. Never before had there been a time where much of the entire working population considered submitting a formal flexible working request – nor, indeed, when employers had to navigate dealing with such a volume of requests.

The statutory process for employees to follow is relatively well-trodden. Employees with at least 26 weeks’ continuous employment can make a request for flexible working under the statutory scheme for any reason. An employee triggers the procedure by making a written request. The employer then has a three-month decision period within which to consider the request, discuss it with the employee and notify the employee of the outcome. The employer must deal with the application in a reasonable manner. The employer can only refuse a request for one (or more) of the eight reasons set out in the legislation. These eight grounds are as follows:

1. The burden of additional costs
2. Detrimental effect on ability to meet customer demand
3. Inability to reorganise work among existing staff
4. Inability to recruit additional staff
5. Detrimental impact on quality
6. Detrimental impact on performance
7. Insufficiency of work during the periods the employee proposes to work
8. Planned structural changes

An employee can complain to an employment tribunal for a variety of reasons about the employer’s response to their flexible working request, including failure to deal with the request in a reasonable manner or within the three-month period.

Some key things to remember

Only an employee can make a flexible working request and only one request can be made in any 12 month period. The change requested could be in relation to:

• the hours they work
• the times when they are required to work
• the place of work (as between their home and any of the employer’s workplaces).

The application must be in writing and state that it is an application under the formal procedure. It must also state the change being requested. The employer must then deal with the request reasonably. Broadly, that means dealing with the request within the decision period, relying on one of the eight grounds for refusing a request, discussing the request with the employee, providing an outcome and allowing the employee the right of appeal. Most employers have flexible working policies which will set out the requirements for making a request and the process the employer will follow upon receipt of a request.

If the employer fails to deal with the request appropriately or fairly, then an employee may have a means of redress under the statutory scheme or, alternatively, a discrimination claim related to the refusal of the request.

It remains to be seen what working life will be like in years to come and whether hybrid working will remain in the long term. The hope for many dads is that it will. The good news is that the flexible working request regime is going nowhere and the onus is on employers to deal with requests fairly, consistently and not to breach discrimination legislation when a request is refused.

Read more:

A guide to digital divorce for working dads

The National Tutoring Programme – a guide for dads 

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