As people return to work, more companies and their employees are enquiring about flexible working policies. If you haven’t yet set a policy for your company, our employment law specialist Philippa Wood sets out some important factors to consider before putting a policy in place.

Employers are in the main, now accepting that employees tend overall, to be more productive when working flexibly. Having that situation forced upon them during the pandemic has changed the whole attitude of the British SME industry – to its advantage.

Flexible Working as a Right

Flexible working is a right for all employees, even when there isn’t a policy in place. Hesitant employers who are yet to offer flexible working to their staff would do well to draw up a clear policy before a raft of requests and challenges arise that end up being detrimental to the business.

Flexible Working According to the Law

At the outset, you must decide what you want from this change. There is a difference between day-to-day, informal flexible working and flexible working according to the law. It is important to realise that under the legal right to request flexible working, once the employer has accepted and agreed to changes to the employee’s terms and conditions, they can’t go back.

Managing Employees Expectations

If, as an employer, you are feeling your way towards a more flexible approach but aren’t sure whether you want permanent changes, a circular communication to all staff can work, setting out what is expected, what is allowed and stating clearly that these changes are subject to review and amendment at the company’s discretion. Always be aware, of course, that, in most cases and without good business reason, you must not favour one employee above another.

Good business reasons are also considered in legal requests for flexible working.

When an Employer can Refuse a Flexible Working Request

Employees may see recent trends as a licence to ask for whatever combination of flexible arrangements they want, to work around childcare or other responsibilities. Good employers will want to help but employees’ expectations need to be managed and a clear flexible working policy is invaluable.

An employer can refuse a request on the basis of:

• The burden of additional costs;
• Detrimental effect on ability to meet customer demand;
• Inability to reorganise 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; or
• Planned structural changes.

As long as one or a combination of these reasons can be justified, flexible working can be refused, again with an eye towards not being partisan or discriminatory.

What Next?

There is no doubt that, post-pandemic, the more flexible approach is here to stay and employers are largely benefitting from the shift as more employees look for flexible working opportunities. If you are thinking of creating a policy for your business, as always, please take legal advice before you take the plunge.

Philippa Wood

Philippa Wood is a solicitor with many years’ experience advising on all areas of contentious and non-contentious employment law. Her clients include individuals and companies of all sizes from entrepreneurs to global brands.

This article remains the copyright property of Prospect Law Ltd and neither the article nor any part of it may be published or copied without the prior written permission of the directors of Prospect Law.

This article is not intended to constitute legal or other professional advice and it should not be relied on in any way.

For more information or assistance with a particular query, please email on info@prospectlaw.co.uk.

Prospect is a multi-disciplinary practice with specialist expertise in the energy and environmental sectors with particular experience in the low carbon energy sector. The firm is made up of lawyers, engineers, insurance and risk management specialists, and finance experts.

This article remains the copyright property of Prospect Law Ltd and neither the article nor any part of it may be published or copied without the prior written permission of the directors of Prospect Law.

This article is not intended to constitute legal or other professional advice and it should not be relied on in any way.