The pandemic has brought about a lot of change, good and bad. Some experiencing loneliness for the first time, others juggling home-schooling whilst working, yet a lot of people have realised the importance of spending time with their family and friends more than ever.
The past 14 months have seen businesses adapt to remote working, literally overnight. With restrictions now starting to lift, employers should be prepared to see a surge in flexible working requests.
The legal bits
Flexible working relates to an organisation’s working arrangements in terms of time, the location and the pattern in which they work on a weekly basis. Flexible working doesn’t mean just working from home, it also encompasses part-time working, reduced hours, compressed hours and term-time working.
Employees with at least 26 weeks’ continuous employment can make a statutory request in writing for flexible working and this can be for any reason. It is possible for employers to allow for their employees to make informal flexible working requests outside of the statutory scheme.
Employers may find it difficult to refuse flexible working requests on the basis that certain work can’t be completed from home especially if the employee has shown during the past 12 months that they are productive and able to complete such tasks. That’s not to say it’s not possible to refuse the request, but employers must have clear evidence about why this flexibility would not be able to continue after the pilot scheme worked well for so long.
As an employer, if you unreasonably refuse a request, you could be at risk of your employee submitting a claim for constructive or unfair dismissal. Workers are also protected under the Equality Act 2010 and should there be a successful discrimination claim, there is no cap to the compensation that can be awarded.
Employers must deal with the application within 3 months of receiving the flexible working request, and this can be extended by agreement if you have reasonable grounds to do so. Employees can make only 1 request in any 12 month period, however further informal requests could be submitted under your discretion.
As an employer, you do have options to consider when reviewing your employees’ flexible working request. We suggest that all correspondence and the formal outcome is documented and kept on the employee’s personnel file.
Accept the request – The new working pattern or location has been fully accepted with no negotiation. The new working arrangement will be a contractual variation to their employment and will be permanent.
Accept the request on a trial basis – The new working pattern as above, is fully accepted but on a trial period. A reasonable time would be between 2 and 4 months or offer frequent review periods.
Negotiate the request – You want to help your employee, but the days/hours that they have requested do not suit the needs of the business. By gathering evidence to show your employee how their flexible working request would be better suited to other days/hours, you can negotiate and come to an agreement that suits both the needs of the employee and the business.
Reject the request – To fairly refuse a request, an employer must have one or more specified reasons set out in the legislation as below, and in addition, be able to evidence the reason:
- Extra costs that will damage the business
- The work cannot be reorganised among other staff
- People cannot be recruited to do the work
- Flexible working will affect quality and performance
- The business will not be able to meet the customer demand
- There’s a lack of work to do during the proposed working times
- The business is planning changes to the workforce
You can find these rejected application reasons on the .GOV website.
Roles that can’t be remote
The majority of a dental practice team requires them to be physically present in the workplace. However, the impact of the pandemic continues to shape how we work efficiently and effectively, so if you think it may be possible, there’s nothing to say working remotely wouldn’t work for some of your team. That being said, if it doesn’t work and it falls within the seven specified reasons for rejecting the application, the law remains the same even post-lockdown in the UK.
The workplace and how a lot of practices choose to run, has modernised and changed a lot within the last few years. Nothing could have prepared us for COVID-19 and since then, the workplace has had to adapt with legislation changes, almost on a weekly basis. This should be seen as an opportunity to think creatively about the way in which we work and consider whether your practice and your team are agile to sustain modernisation and moving with the times. Flexible working can also bring about a whole host of benefits, such as increased job satisfaction, employee engagement, as well as better mental health and work life balance. It’s worth considering each request on a case-by-case basis, looking at how you can work with and support your employees and what matters to them most, all the while protecting your business by building a happy and healthy team.
If you require further information about the topics we’ve covered in the article, please contact us.