Many staff have been working from home since COVID-19 was declared a pandemic last year. Given the way that most businesses have adapted to staff working from home in a crisis, it’s a possibility that we might see more staff working from home in the future, as we slowly start to emerge from this emergency situation.

As we come out of “office lockdown” and people start to move back into office space, it is likely that more employees will make flexible working requests, in order to work from home or to change their working hours. Given the successful way in which businesses have adapted, it is likely to be harder for employers to refuse such requests.

Only an employee can make a request for flexible working, they must have at least 26 weeks’ continuous service and they are only allowed to make one request in any 12 month period.

The employer should then discuss the request with the employee and consider the request carefully, weighing up the benefits of any potential change with any adverse impact to the business. If the change is accepted, then the employer must provide a written statement of the change to the employee. Any decision needs to be communicated to the employee within 3 months of having received the request.

If you are an employer and you have received a flexible working request, you must demonstrate to the employee that you have given serious consideration to the request before making any refusal. You must make sure that you can fully explain the business reasons for the refusal, which are set out in legislation, as follows:

1. the burden of additional costs
2. detrimental effect on ability to meet customer demand
3. inability to reorganise work among existing staff
4. inability to recruit additional staff
5. detrimental impact on quality
6. detrimental impact on performance
7. insufficiency of work during the periods that you propose to work; or
8. planned changes.

In general it is fairly accepted by Tribunals that women have the greater childcare burden, so any policy which sets out full-time office work, is likely to disproportionately affect women, so any refusal of a flexible working request from a female employee and an employer might face a sex discrimination claim. On the flipside of this, a man with childcare responsibilities who makes a flexible working request which is refused, just because he is a man (where female staff in the business have had their requests granted), is also likely to have a potential discrimination claim against his employer.

An employee might also make a flexible working request as a reasonable adjustment due to having a disability, or in order to accommodate their right to practice their religion. Employers need to be mindful that any refusal on grounds, other than the business reasons listed above, could result in a successful discrimination claim against them.

For any advice on flexible working requests or for a flexible working policy for your business, please contact the employment team.