Flexible working: Practical considerations for employers

A year ago in lockdown one, we published a blog on ‘The Impact of Coronavirus on Employment – The Home Working Revolution’. 

Over the past few weeks months we have reflected on the future of flexible working and our previous blog.  We have posted a blog on ‘the Future is Flexible Working’ talking about the revolution of flexible working post lockdown with our thoughts on this.

But in this blog, we have more practical steps on how to implement flexible working into your working day and what employers should bear in mind moving forward as the world of work changes.

The right to make a flexible working request

Any employee with 26 weeks of service with the same employer has the right to request to work flexibly; you don’t have to be a parent or carer 

‘Flexible Working’ means altering the way employee’s work. This includes changing hours, either compressing them or changing to part-time or term-time only or working wholly or partly from home.

The pandemic has led to inevitable revolutionary changes, with businesses who claimed home working was simply ‘not possible’ in many roles managing to successfully run their businesses with their staff working remotely.

This has led to far more people wanting to work remotely and seeing that it is possible to do their jobs from home. Employers must now rethink how they will deal with flexible working request moving forward as the previous reasons for refusal of such working arrangements may be no longer valid reasons to refuse.

Here are a few statutory reasons why an employer can refuse a flexible working request:

  • Extra costs that will damage the business
  • the work cannot be reorganised among other staff
  • people cannot be recruited to do the work
  • flexible working will affect quality and performance
  • the business will not be able to meet customer demand
  • there’s a lack of work to do during the proposed working times
  • the business is planning changes to the workforce

Previously, employers could rely on concerns surrounding costs, quality or customer demand to refuse applications to work from home. But now, employers will struggle to refuse a flexible working request to work from home as they did before, as they have successfully implemented working from home in the last twelve months and put that infrastructure in place, so they won’t be able to argue that they will not be able to accommodate it, presuming there was no impact on quality, performance etc. as a result of the pandemic.  Employers could be putting themselves at risk of claims if they refuse such requests without a justifiable reason and should ensure they objectively justify any refusal inwriting in response to any requests.

This, of course, is dependent on each individual and whether the individual was productive when working from home and still manages to excel in their role.  But, broadly, it means that employee’s flexible working requests to work from home will be more difficult to refuse moving forward.

TIP – we would recommend you keep a paper trail of all discussions on any of these types of requests, also bear in mind the reason for the request if it relates to a disability or childcare reasons there could be a risk of discrimination if you refuse too.

Making changes

Employers should ensure that their contracts and policies properly reflect what employees are expected to do at the moment, where they are working, and when they are expected to work.

If an employer is foreseeing a permanent change to more flexible hours or remote working, you need to reflect this in that employees’ contract and obtain consent to those changes, after consultation.

Some employers will have a variation clause in the contract which means they can vary the contract unilaterally, but this should still be done with reasonable notice and through a consultation to avoid claims of constructive unfair dismissal and breaches of the implied terms in the contract.

You also need to think about the consequences; what if, despite the contract, employees don’t work when they are expected to? You need to ensure that the accountability and the expectations are clear so that employers still have the option of resorting to disciplinary action when needed or amending the arrangements if there are performance concerns.

Any change to the way a company works also requires changes to a handbook. Not just the flexible working policy, but also the sickness policies and the disciplinary policies (for example): if there’s no office to attend, where will the relevant meetings be held?  The health and safety policies will also need to be changed (as below) and employers should ensure that employees are aware of their confidentiality obligations where information is stored at home.

Health and Safety at home 

Just because employees might be working from home, doesn’t mean that an employer has no obligations in that environment. Employers should still make sure that the home working environment is safe and causes no injury to those employees.

All employers should be conducted DSE assessments to ensure employees are set up correctly to prevent injury and ensure they have all the equipment needed to full fill their roles.

Little things are also important; making sure that your employees check their fire alarms, for instance, and checking what security they have in place to protect company property. An employer should also make sure they have all the technology they need to perform their role from home.

Another thing an employer should consider, sadly, is that some employees will remain in danger in their home. It’s important for employers to ensure that employees know where and how they can report any concerns they may have in their home environment; in certain large organisations, this may involve an anonymous helpline or practices put in place to support employees in such circumstances.

Where do they work? Elsewhere in the country?

One practical consideration is that some employees may want to move to a different part of the country due to homeworking, perhaps to live nearer family or to move to a bigger house. Perhaps they already have in the thought that their role is no home working so that this would not matter? How does that work?

An employee moving away from their office at the moment, without knowledge of the plan or the future workplace, would be taking a huge gamble. If the place of work clause in a contract still states the office, that would still be enforceable, as the home working arrangement has been short lived due to a pandemic so it would be difficult to argue this was due to custom and practise, so an employee can still be asked to attend the office regularly and failure to do so could result in disciplinary action.

In extreme examples, if an employee then refuses to attend that office, it could be that they are found to fail to follow reasonable management instructions. So, for the employee, they should speak to their employer before making any significant moves throughout the UK or abroad.  

Having said that, in practicality, an employee could intend to move, and then make a flexible working request which (for the reasons outlined above) an employer may then struggle to refuse

Where do they work – can they move abroad?

Another interesting question is whether employees could now work abroad, for UK companies, as their home. This would need to be thought about on a case-by-case basis, but ultimately it may give rise to tax and legal consequences. There could even be an argument that employees are no longer under English or Welsh legal jurisdiction in employment law and this is a complex area dealt with on a case by case basis.

Given this, the employer should take advice on their position, then make their policy on permanent abroad working clear, and any approval should be seriously considered by the employer as the consequences could be far-reaching.

Management training

Flexible working requires leaders to adapt their leadership style to ensure maximum productivity. Managers should ensure that tasks are very clear and that if employees have any questions, they know where to go to and they know they will be supported. Flexible working requires managers and leaders to give the employees freedom, responsibility and trust to figure out the best way and most efficient way for them to complete the task. Managers should stay supportive and keep employees accountable with follow-ups on tasks which will keep employees focused on getting the tasks completed within the time frameset. Most of all though, managers should have learnt through a year of homeworking that they can trust their staff to work from home, rather than a previous assumption it was just a glorified day off.

Managers and leaders are now forced to learn that not everyone can be treated the same and be able to work productively. Over the past year, everyone’s circumstances have been different whether that it’s home-schooling kids, looking after sick relatives or even navigating their mental health issues and balancing this with furlough or home working. Different employees require different needs and now more than ever we are becoming more aware of that. Managers require sufficient training and support to be able to cater for different groups of employees.

Managing Mental Health

Like most people, our first feeling was relief that lockdown and all the negative connotations such as the loneliness, isolation and uncertainty, could come to an end. It is exciting to know there is light at the end of the tunnel and we can start to make plans for the future, many of which will have been cancelled so many times.

A lot of people have leant new coping mechanisms or self-care routines in lockdown. These are (quite naturally) home oriented and people are used to spending a lot more time on their own or going on long walks on weekends rather than out in large groups or away from home.

Something important to bear in mind is that, just because we are now allowed to leave, doesn’t mean that people should feel obliged to make a million plans once the restrictions are lifted. It’s important to continue to define your boundaries post lockdown and once all restrictions cease, and ensure you ring fence time for you every day.

It’s important to hold onto the lessons learnt over the last 12 months, particularly around selfcare, and carry them into the future.

Another concern is that, where employees are working from home more, an employer cannot physically see how that person is presenting, feeling, or acting. An employer should therefore ensure there are regular mental health check-ins with all employees, whether in the office or at home.  At Thrive we use wellbeing risk assessments so that we can check in and support staff  with their mental health and whole person wellbeing.

Jodie wrote a white paper last year on the impact of COVID-19 on mental health, which you can see is far-reaching and actually unknown as we go into the long term.  What we do know is that everyone is in the same storm, but a different boat and we must respect how people receive this information and transition out of lockdown and towards a life with no restrictions. Employers will need to seriously consider how they support their employees’ mental health moving into the future.

At Thrive we have created Thrive wellbeing, a mental health programme helping businesses to change their approach to employee mental health. The programme has various online modules to complete, with guides for management, template policies, forms and emails, all ready to download and use in your business. It’s an online interactive platform to create a healthy and inclusive workplace, it offers expert advice and support on mental health in the workplace. We are offering a free 3-day trial for businesses who are looking to invest in their people and create a resilient team as we head out of lockdown and into the new flexible workplace, please get in touch for your free trial or a demo TODAY.

The Future of Homeworking

One clear thing is that whilst it may have become tedious or monotonous in the last few months, homeworking still has clear benefits. Whilst Rishi Sunak claims that working from home will not be the “new normal”, some people will want to retain the flexibility that lockdown may have given them. Employers should consider being flexible in the future, as people do return.

Employers must consider that there is no “one size fits all” approach and if home working has been working for employees and the business, can this remain in place? 

You should maintain openness in your communication, be transparent and have a sympathetic approach to your employees as you never know what someone is dealing with mentally.

At Thrive we have always adopted Smart working (pre COVID-19) where the staff can choose when and where they work to suit how they work best and their needs, of course balancing these with the needs of the business, but we are living proof that this flexibility really does work long term.

If you have any challenges when bringing your team back or want to change the policies around flexible working post lockdown, get in touch and we can support you through this final hurdle.  Email Jodie.hill@thrivelaw.co.uk

Did you know we provide outsourced HR services to businesses?

Using Thrives HR services makes your life easier; we provide you with quick and most importantly, correct HR decisions so your staff management is stress-free and sufficient. We take care of everything. From drafting contracts and handbooks tailored to your business to advising and supporting you through redundancies. There is no limit to our knowledge, if you have an HR question, our qualified solicitors have the answer for you. We are always one phone call away. 

Why should you outsource your HR services to solicitors? Getting your HR services from a solicitor means, should a case ever proceed to tribunal everything we have ever discussed is protected by Legal privilege meaning all conversations are protected. Whereas if you were to use an HR consultant, all conversations and documentation regarding that employee would be disclosable in the tribunal. 

Get in touch today to invest in your business and make your HR stress free. Email Jodie.hill@thrivelaw.co.uk 


Please note this blog is for reference purposes only and is only accurate at the date it was published. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action. Please contact us if you have any questions at enquiries@thrivelaw.co.uk   


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