A four-day working week? Flexible working requests and hybrid working

According to a report earlier this month by the Chartered Institute of Personnel and Development (CPID), one-third of employers believe a four-day week will be possible within a decade. Many of the 2,000 employers surveyed said that for this to work it would require increased efficiency and that it would be possible to keep the level of pay the same, predominantly either through working smarter or the increased use of technology.

This report comes at a time when there is increased interest in the concept of the four-day working week with a renewed focus on work-life balance. However, progress on this front is still slow.

Arguably, the greatest catalyst so far for reduced hours and/or flexible working has been the COVID-19 pandemic, which forced many organisations to reassess their working requirements and productivity rates following government guidance to work from home where possible. Despite this guidance no longer being in place, the knock-on effect was that many employees preferred this change to their working arrangement and the flexibility of working from home and hybrid working. What followed was a flurry of flexible working requests with employers having to quickly reevaluate their business needs against those of their workforce in an economically unstable climate. This flexible working movement may be set to continue as we go into winter and COVID-19 rates start to increase once again. In these circumstances, it is important that employers are familiar with the flexible working process and how to implement this.

Eligibility

A flexible working request can be made by an employee as long as they:

• Have worked for 26 weeks continuously at the date the request is made; and
• Have not previously submitted a request for flexible working within the past 12 months.

The request

The flexible working request must:

• Be in writing and dated;
• State that it is an application made under the statutory procedure;
• Specify the change that the employee is seeking and when they wish the change to take effect;
• Explain what effect, if any, the employee thinks the change would have on the employer and how any such effect could be dealt with; and
• State whether the employee has previously made an application to the employer and, if so, when.

The procedure – employers

1. Consider the written request once received and arrange to talk with the employee as soon as possible, note that if the request is to be approved then a meeting is not necessary.
2. All requests must be considered and decided on within three months from receipt unless an extension is agreed upon between the parties.
3. Discuss the request with the employee to get a clearer idea of what changes they are looking for and how those changes might benefit the business.
4. Consider the request carefully weighing up the benefits of the requested changes against any adverse business impact of implementing the changes.
5. Once a decision has been made inform the employee of that decision in writing as soon as possible. If the request is accepted (to include any moderations) discuss with the employee how and when the changes might best be implemented.
6. If the request is rejected it must be for one or more of the eight statutory business reasons which include, among others, additional costs and detrimental impact on performance. The employee should then be allowed to appeal should they wish.

Key considerations and practical steps

• Employers should ensure they have a written flexible working policy in place setting out the procedure to be followed. A working-from-home and hybrid working policy are also advisable so that any parameters are clear from the offset.
• Employers should consider training management on the flexible working process in order to ensure that such requests are dealt with correctly and consistently.
• Employers should be wary of informal requests for flexible working and how to deal with these. It may be preferable to encourage the employee to submit a formal request in order to invoke the accompanying process.
• When considering a request against the eight business reasons, in order to avoid allegations of impartiality or bias against the manager making the decision and possible allegations of discrimination, it would be sensible to have a second manager or someone else within the relevant department also consider the request against those reasons.
• Bear in mind that if the flexible working request is granted, the change to the working arrangement will constitute a contractual variation to the employee’s terms of employment (either temporarily or permanently). As such, the employer must make sure that their written terms have been updated accordingly pursuant to the Employment Rights Act.
• Alternatively, a trial period may be agreed upon for both parties to assess the suitability of the new working pattern or arrangement in practice. This should also be appropriately documented.
• If flexible working requests are received from more than one employee at the same time the decision of whether to grant either of the requests should be based on whether the business can support it. If both requests are for the same change at the same time and the employer can only grant one they will need to carefully consider their options if a compromise between the two cannot be reached. These could include first come first served or random selection.
• As flexible working requests may often result from childcare commitments or caring for dependents, in order to avoid any allegation of discrimination employers should be careful to make sure that such employees are not treated any less favourably because of any protected characteristic.

If you require any advice or assistance in relation to flexible working requests or working arrangements in general please contact our Head of Employment, Louise Rogers at Louise@prosperitylaw.com or on 07841 644068.