07841706203 louise@watersidehr.uk

With an increase in home working and a likely return to many workplaces in the next few months will we see an increase in flexible working requests? This could be dependant on whether you can offer hybrid working and some work from home/some work from the office.  Even in sectors where home working isn’t possible, employees may have reflected and decide they want to change working hours. If you do see an influx of requests, what do you need to consider?

What is flexible working?

Flexible working might involve reducing or varying hours or days that are worked or changing the location of where work is carried out. There are lots of options, including:

  • part-time working;
  • term-time working;
  • annualised hours;
  • compressed hours;
  • flexitime;
  • homeworking; and
  • job-sharing.

An employee with at least 26 weeks service with the Company can made a request for flexible working by law and can make one request in a 12 month period.

As an employer what must you consider?

You must deal with requests in a ‘reasonable manner’ which can include holding a meeting, considering the request and offering an appeal process.  A decision must be made within 3 months (unless longer has been agreed with the employee).

What are the reasons a request can be refused?

You can reject an application for the following reasons:

  • 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 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 also arrange for trial period to be arranged if you want to see how the flexible working proposal would work in practice.  This should be confirmed in writing and if the trial is successful you should issue an amendment to the employee’s contract of employment.

It can be worthwhile to have a flexible working policy which outlines the procedure you will take.

Considering discrimination with flexible working – Recently in the tribunal

Ms L Hodgson v Martin Design Associates Ltd the tribunal found that Ms Hodgson was directly discriminated against on the grounds of sex and was constructively unfairly dismissed.  Ms Hodgson applied to work remotely from her son’s hospital bedside as he underwent treatment for cancer.  The company’s Managing Director made the decision that Ms Hodgson could not work and look after her son’s needs despite what she thought despite the fact that much of her role could be done remotely and there was a company laptop and phone available.

The tribunal found this was in stark contrast to the approach taken to male colleagues whose requests for remote working were granted on a short term and more enduring long term arrangement.  The Managing Director did not decide he knew what was better for them like he had Ms Hodgson.  The tribunal also took into account that arrangements had already been made to cover Ms Hodgson’s role, no trial for remote working was suggested.  She was told to take holiday for two weeks and then be unpaid.  Ms Hodgson was awarded £5,000 for aggravated damages occasioned by sex discrimination and £7,500 or injury to feelings as a result of direct sex discrimination.  A further unfair dismissal award was made of £8,186.58, a compensatory award of £350; an additional injury to feelings award of £10,000, £21,886 for financial loss; plus interest which amounted to a total of £59,612.58.  Ms Hodgson’s claim for disability discrimination and failures to make reasonable adjustments failed.