What else does flexible working mean?
Think beyond physical workplace and do consider whether there is a positive/negative case for greater flexibility on hours of work (total hours per week, the time at which they are worked and how rigid that needs to be) and more job sharing.
The possibility of employees working abroad permanently needs to be more cautiously considered than other flexibilities – there are varying tax, immigration, social security and employment implications to be considered even if you are fine with the practical implications.
Interim considerations
Your strategy will need to factor in the need to retain social distancing measures for a period of time and the possible impact that may have on perceived benefits of returning to the office and how to manage those. Do you need a team rota for office use, for example, in the short to medium term that you will unlikely use in the longer term?
You will also need to consider and manage anxiety about the virus in terms of both the measures in your workplace and how employees would usually travel to work.
Ensure that the business keeps up to date with the changing government guidance on what is required in terms of safe working space, which is set out by sector and work environment.
Formal flexible working requests
If you receive a valid written request for flexible working from an eligible employee, do remember that this puts you automatically within the confines of a rigid statutory procedure which requires that you deal with the request reasonably (in line with the Acas Code of Practice on flexible working requests), deliver a decision within 3 months and only reject it for one of the following defined grounds for refusal:
- the burden of additional costs;
- detrimental effect on ability to meet customer demand;
- inability to re-organise 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; and/or
- planned structural changes.
Employees can lodge tribunal claims if you have not dealt with their request in a reasonable manner, have failed to notify them of a decision within 3 months and/or have rejected their request for a reason outside of the defined grounds. Employees bringing such claims can be awarded:
- an order from the Tribunal that the business must reconsider the request; and
- compensation that it considers to be just and equitable up to 8 weeks cap at the statutory cap (currently £538 (increasing to £544 from 6 April 2021).
Such claims are also usually accompanied by more costly claims for direct discrimination, indirect discrimination, failure to make reasonable adjustments and/or constructive dismissal.
It could prove unhelpful to an overall strategy towards a new model of working if you have multiple formal flexible working requests running concurrently. For this reason, we say it is best to plan ahead. Tell your employees that you are as interested in new permanent ways of flexible working as they are, survey your staff, start a conversation/consultation and implement a strategy on your own terms. This is better for engagement and prevents you becoming hostage to formal processes which only impact one individual (and could mean constraints on what more you can do for others).
Your strategy will be best aimed at establishing what the 'regular' expectation will be for employees in terms of flexibility. You will still need to be ready to consider requests on a case by case basis from employees who want or need more flexibility – but it is important that you have established your new normal against which to assess this first.
