What is flexible working?

Flexible working is defined by the UK government as ‘a way of working that suits an employee’s needs’. Flexible working by its very nature suggests that an employee is working outside of the organisations ‘normal’ working pattern.

There are many reasons why people would want to request flexible working and change their original contractual arrangement. They may have caring responsibilities, whether for their children or potentially even elderly or disabled family members.

They may feel that their work-life balance has shifted and they want to work reduced hours to enjoy more free time during the week. It may be that they find commuting to the office five days a week is simply exhausting and is impacting them physically, mentally and financially.

Requesting flexible working

All employees have a statutory right to request flexible working and from 6 April 2024 they have the right to make this request from day one of their employment. Previously they needed to have 26 weeks service before submitting their flexible working application.

An employer must accept a flexible working request unless there is a legitimate business reason not to. If they refuse the flexible working application, it is the responsibility of the employer to show the detrimental impact to the business.

Employers can refuse an application for any of the following reasons:

• 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
• flexible working will affect 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

Employees may ask to vary their contractual hours in a number of ways.

They may want to adjust their start and finish times to accommodate personal commitments or preferences.

Employees may also want to reduce the number of hours they work. Part-time working requests are common to enable the employee to care for their children. With the average cost of childcare in the UK being over £1200 for a full-time nursery place it is understandable that people decide that working part-time would be beneficial for them.

An employee may request to work compressed hours. This means they will work their contractual hours, but over fewer days. People may ask to work 8am – 6pm on four days of the week which would allow them to take every Friday off. An alternative to this is working a nine-day fortnight which means they work compressed hours over more days which will allow them to have one day off every two weeks.

Reasonable adjustments

The term ‘reasonable adjustments’ can sometimes be confused with flexible working. There are similarities but they are actually different processes.

ACAS describe reasonable adjustments as ‘changes an employer makes to remove or reduce a disadvantage related to someone’s disability’. Therefore, if the individual does not have a disability the employer would consider any request to change their working pattern through the flexible working process.

The Equality Act 2010 states that employers must make reasonable adjustments for employees and workers, contractors and self-employed people hired to personally carry out work and job applicants.

Reasonable adjustments could include

1. Making changes to the workplace – This could include relocating an individual’s desk to the ground floor to avoid stairs, or it might be providing a standing desk to alleviate back pains.
2. Changing someone’s working arrangements – This may be helpful for individuals that would find it beneficial to start later in the morning due to conditions that cause chronic pain for example.
3. Finding a different way to do something – For example instead of a meeting being face to face it may be moved to a virtual meeting.
4. Providing equipment, services or support – This may include things like providing technology to support people with their dyslexia or other disabilities

Employers must make reasonable adjustments when they either know, or could reasonably be expected to know, someone is disabled. The individual may wish to discuss this at the application stage, from day one or it could happen following a period of long-term sickness in order to facilitate the employee returning to the workplace.

An employer is obligated to consider all reasonable adjustments. The key consideration is whether the employer deems the adjustments to be reasonable and whether the organisation can accommodate the request. If the employer cannot make the reasonable adjustments due to it having a negative impact to the business, or it’s simply not feasible they should have a conversation with the employee to discuss this. It may mean the employee can no longer work for that company if they cannot find another way to support them.

Failure to make reasonable adjustments could result in a tribunal claim being submitted for discrimination. It would then be for the employer to demonstrate why they believed the adjustments were not reasonable.

Which process to follow?

When it comes to knowing what process to follow when considering a request to change an employee’s contractual terms and conditions, we recommend asking yourself:

–          Has the change derived from a medical / health condition?

–          Is this condition considered to be a disability?

 

If yes, then you should work with your occupational health provider to discuss whether the requested adjustments are appropriate for their condition and what would be deemed reasonable.

If the change is not being driven by a disability then you should consider the request via the Flexible Working Process

Through both processes an employer must be able to demonstrate that they have given the request due consideration before making a decision.

 

This article was kindly written by Claire Cathcart from Elevate Hub, the place for HR professionals.

For support with your HR please contact Claire today.