4th March 2022

Do you need to bend over backwards when considering a flexible or hybrid working request?

You won’t be surprised to learn that we were asked quite a few questions about hybrid working at our last Ask the Expert webinar, so we thought other employers might find it helpful if we were to share a summary of the answers we provided.

What is hybrid working?

It’s always helpful to be clear about the terminology used. While hybrid working may have its own distinct policy in your workplace, it does fall within the domain of the Flexible Working Regulations (hybrid working mainly relates to place of work) and is governed by the statutory flexible working procedure.

Flexible working request

If a request is made relating to the employee’s place work, whether that it is to work exclusively from home or part of the working day or week, it is important to be clear if a statutory flexible working request has been made as that place’s certain obligations on the employer. If the request is informal (say because the person has used up their one request per year) then it can be dealt with according to an internal policy or in a reasonable manner.

We would always suggest that even if this is an extra or informal request, you still treat it seriously as while you have no legal obligation to consider it, failure to do so could have implications from a discrimination point of view depending on the reason the employee is asking.

If you are dealing with it under the statutory procedure, make sure that the employee:

  • has the required 26 weeks’ service;
  • submits it in writing;
  • dates the request; and
  • sets out that it is a statutory request and clearly states what they are asking for.

While you can refuse the request if it is not in the required form, we would always advise employers not to be too technocratic about this. The purpose is to seriously consider the request and you might experience a breakdown of trust if you try and get out of things on a technicality.

Once you have received the application, the ACAS guidance suggests that the employer should convene a meeting with the employee to discuss the request. The employee should then be informed of the decision in writing. If refusing the request, it must fall into one of the eight statutory grounds. The employee should be allowed the right to appeal. The whole process should be completed within 3 months unless agree otherwise.

Duty to protect health and safety

There is no right in law to work from home and the guidance which provides for that to happen is coming to an end and so it is perfectly reasonable to say to an employee that they must return to their principal place of work (stated in the employment contract). However, an employer has a duty to protect the health and safety of its employees and an employer should be complying with all the necessary mitigations required including carrying out a risk assessment in relation to the return as well to identify potential issues in your workplace.

Other considerations

Remember that employees may be nervous to return to a public office space, particularly where they have worked exclusively at home and so our advice would always be to work productively with staff about this and avoid mandates and enforcement. We would always suggest avoiding a one size fits all approach and be mindful of potential discrimination claims because people’s circumstances differ and there might be a genuine reason why an exception or accommodation has to be made.

Trial periods

Flexible working arrangements can be trialled, which can be way to demonstrate that the proposal will/won’t work. How long should the trial period be? It is difficult to say as you want it to be long enough that you can reasonably say it was ‘tried out for size’ but not too long whereby it is difficult to refuse the request on the basis it has been in place for so long. Typically, three months is a good length of time.

To book your place at the next Ask The Expert on Friday 11th March, 9.30-10.00am please email : asktheexpert@blackadders.co.uk

Donna Reynolds employment law partner

Donna Reynolds, Partner
Accredited by the Law Society of Scotland as a Specialist in Employment Law & Discrimination Law
Employment Law
@EmpLawyerDonna

Blair Duncan, Solicitor
Employment Law
@EmpLawyerBlair

www.blackadders.co.uk

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