In today’s world, flexible working is in high demand, with ‘hybrid working’ being the preferred approach for many organisations right now.
Often cited as the most-desired employee benefit, businesses are increasingly embracing working models that place less emphasis on where and when employees work and focus more on productivity, engagement and output.
However, for many organisations, flexible working is largely unexplored territory. With various employment law, HR and health and safety implications to consider, expert support from Ellis Whittam will enable you to execute your plans confidently and compliantly.
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Flexible working can take many different forms: part-time working, term-time working, job sharing, compressed hours, annualised hours, flexitime and – most relevant right now – remote working or a ‘hybrid’ approach. Any working arrangement which gives employees a degree of flexibility over where, when and for how long they work will fall under this general umbrella.
Whatever your situation, and whatever type of flexible working you are exploring, our Employment Law, HR and Health & Safety specialists can advise you on the legalities, help you to preserve productivity and engagement, and ensure you’re meeting your risk management responsibilities.
- Set out your arrangements and expectations, and avoid issues later down the line, with a flexible/hybrid working policy and procedure tailored to your business
- Ensure your contracts align with your flexible working arrangements, and insert new clauses if necessary, by having them reviewed and updated by qualified legal experts
- Manage flexible working requests compliantly, and avoid potential discrimination issues when rejecting requests, with unlimited advice from your own small team of dedicated Employment Law specialists
- Save time and navigate the process efficiently and compliantly with documents drafted on your behalf, including hearing invites and acceptance, rejection and contract variation letters
- Ensure staff can work safely from anywhere with a dedicated health and safety policy, specific advice on appropriate control measures, and guidance on conducting homeworker risk assessments with templates provided
Preserve productivity while preventing legal missteps
Any employee with over 26 weeks’ service has the statutory right to request flexible working. However, this doesn’t mean they have a right to be granted flexible working.
The law is very specific about how employers must deal with statutory requests. For example, you must:
- Deal with applications in a reasonable manner
- Have a valid business reason for rejecting an employee’s request
- Notify the employee of your decision within three months
Failing to deal with requests properly could provide grounds for an Employment Tribunal claim. Rejecting a request may also cause hard-working employees to disengage.
At the same time, you have a business to manage, and ensuring high-levels of productivity are maintained and objectives are met will naturally be a top priority.
If you’re unsure of where you stand legally or confused about the process you need to follow, our Employment Law experts can offer guidance on whether or not to grant a request, advise you on the legal process you need to follow, and help you to avoid costly mistakes.
An Employment Tribunal can award up to eight weeks’ pay for invalid refusal of flexible working requests
Common flexible working queries, answered by our Employment Law, HR and Health & Safety specialists.
What if an employee wants to remain working from home after lockdown?
If an employee asks for this, it will probably amount to a flexible working request (subject to qualifying criteria). Therefore, any such request must be dealt with in a reasonable manner, within three months of the request being made, and can be only be rejected on certain business grounds. We have produced a template Homeworking Policy, which can be download from our Coronavirus Advice Hub, in order to assist with this process.
What are the potential problems of rejecting a flexible working request?
There are three main risks.
First, if there has been a breach of the flexible working provisions of the Employment Rights Act 1996, a Tribunal could order that the employer reconsiders the request and/or award compensation of up to eight weeks’ pay.
Second, if the employee has two or more years’ continuous service, they may be able to resign and claim that they have been constructively dismissed if there has been a fundamental breach of their contract. This will be difficult for the employee to prove unless they can demonstrate that rejecting the request destroyed the relationship of trust and confidence between the parties.
Finally, discrimination. If a request has been rejected because of a protected characteristic, for example sex or disability, this will amount to direct discrimination. Also, if the reason(s) for rejecting a request leads to more of a disadvantage to one protected group when compared to other groups, this may amount to indirect discrimination unless it can be objectively justified. This can be particularly common if the request is from a female employee and relates to childcare arrangements.
Without writing it into contracts, what would be the most effective way to unofficially have a ‘two day in the office, three from home’ model?
If you don’t want to have a formal contractual change, then just agree the arrangements with the employee, ideally by letter, but on a temporary basis. Remember though that a variation by letter is normally a variation of contract and even an unofficial or informal change may well be seen as a contractual variation, by implication or custom and practice.
How can we balance different business needs at each site while still remaining ‘fair’ in the eyes of employees?
Just as different organisations will have different needs, one employer may have different needs within a workforce or across multiple entities/work locations. The CIPD 7 strategies to make hybrid working successful in an organisation may be helpful. Assessing the individual needs of each location/ role and ensuring managers are clear in their messaging about the rationale behind the arrangement at each location will be critical.
If a pattern of flexible working is agreed, e.g. WFH Friday, can we ask the employee to come in for a meeting on Friday?
When agreeing a flexible working pattern, it is important to make it clear that you reserve the right for the employee to attend work for meetings on days when they normally work from home, if required. This should be exercised on a reasonable basis, e.g. not expecting them in every Friday otherwise the agreement becomes meaningless.
Are employees who work from home considered to be lone workers?
If a person is working at home, then they are considered to be remote working (i.e. they do not have direct supervision from their employers but have means of communication). If there is another person in their home while they are working, then they are not considered to be a lone worker (i.e. as there is somebody else in the home that can assist in a case of an emergency).
We have decided to implement a hybrid working pattern. What are our obligations on health and safety and do we have an obligation to attend staff members’ addresses to ensure that they are meeting health and safety standards?
Employers have the same health and safety responsibilities for remote workers as for any other employee. You do not have an obligation to attend the employee’s address but rather an employer should consider how they would keep in regular contact with the employee, e.g. regular online meetings or phone calls. An employer would also consider what type of work is undertaken, if this can be done safely, and what control measures are needed if required.
How can we determine that somebody has the right set-up at home and can work effectively?
An employer would provide a working at home form / DSE form for the employee to complete; this would identify whether an employee has suitable working conditions at home. The form would also highlight key areas that an employer can assist, such as providing a foot rest, lumbar support and/or hand and wrist support pads, etc.
Could we run hybrid working via a Flexible Working Policy rather than changing terms and conditions of employment?
Yes, you can use your existing Flexible Working Policy for requests if you don’t want a separate Hybrid Working Policy. However, a Hybrid Working Policy is probably beneficial as it will be able to specifically cover the issues involved when an employee works both in the office and at home.
Can we insist on certain members of staff going to the office each day whilst others are offered homeworking or hybrid working?
Yes, potentially you can, provided the reason for it is not arbitrary or capricious and there is no discriminatory element. For example, for more junior colleagues who may need a greater degree of supervision, you could justifiably require them to attend work. Obviously, you would then need to ensure that they did in fact get the required support in the office.
Explore other HR advice and support
From setting up a grievance procedure to holding a hearing and managing appeals, we’re here to walk you through the process so that you can resolve issues quickly, compliantly and with minimum disruption to your business.
How long should a grievance investigation take?
That will depend on the subject matter of the grievance or how many allegations are made. There is no legal time limit on how long the investigation should take and the Acas Code of Practice says that an investigation should be completed within a reasonable time frame.
Can I ignore a grievance?
This would not be a good idea. If someone has complained about their treatment at the hands of a colleague or manager, ignoring the problem will not make it go away. In fact, it will probably make things worse. If the complaint is not dealt with properly, it could lead to a resignation and then a constructive dismissal claim or, depending on the subject matter, a claim for discrimination.
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