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COVID-19 and “the new normal” for flexible working requests

COVID-19 and “the new normal” for flexible working requests

14th May 2020 - Published by Kuits employment team

As businesses begin to plan for the future of their workplaces post-lockdown, the Kuits employment team examine the current regulation around flexible working requests and how the landscape might change for employers in the wake of COVID-19.

A new right was introduced in the UK on 6th April 2003 giving qualifying employees the right to request flexible working. The law prescribed a procedure that employees and employers had to follow, with time limits, to make employers at least consider these requests. The regulations also provided employers with eight reasons to legitimately refuse the request, so, by following the procedure and getting the facts right, an employer could refuse the request relatively safely and move on. The scope of the legislation widened in 2014 – more employees qualified to make the request and the process became less bound up in procedure and time limits – but not much changed for most people.

It is safe to say that the combination of the COVID-19 pandemic and advances in technology have done more to shake up working practices in two months than in two decades of legislation. Workplaces will not return to how they were prior to COVID-19 and the implementation of lockdown. And it’s not just where we work, but how we work.

Employers and employees who may have always been based at the workplace have been forced into working from home and, as a result, will have most probably discovered different and better ways of working. This adaptation to a change and mandatory move to be at home has no doubt been unsettling, yet progressive when considered positively.

Flexible Working Requests

Dealing with flexible working requests (an entitlement to any employee with at least 26 weeks service with one request permitted in a 12-month period) is likely to increase. When addressed in the right way, this can be advantageous for both employers and employees in terms of productivity, loyalty and dealing with changes in the business where appropriate.
What we have seen is the greatest global trial of remote working and many misconceptions of what this means have completely changed course, such as the following:-

  • Reduced work capacity and/or productivity;
  • 9am-5pm is the best timing for working capability;
  • Effectiveness of technology and the willingness of people to engage and embrace it.

Health and Safety

In any return to work, focus will have to be on health and safety, and all employers will need to be looking at strategies to manage this. Understandably, employees will want to know how they will be protected and possibly question whether they would be in a better position to remain remote working rather than return to the office. In addition, furloughed employees will need to be considered in a different way as they will have these same concerns, together with dealing with their separation from the business.

Ultimately, there will be a balancing act between people wanting to return to their working lives prior to COVID-19, but also having the flexibility to maintain the advantages discovered whilst working remotely. Many businesses, such as Twitter and BT, are saying that it will be up to the employee to decide if they want to return to the office. That trend will surely continue.

So, if you do go back to normal and if as a business you ever find yourself facing a claim in the future for failing to grant a request for flexible working, be prepared for the inevitable nonchalant judge’s question: “Just tell me, what did you do during the 2020 lockdown?”

Speak to an employment lawyer in Manchester

To discuss how best to implement or improve your existing Flexible Working Policy to work for your business and deal with any queries you may have in immediate future, please contact Rhiannon Davies in our employment team on 0161 838 8172 or email rhiannondavies@kuits.com.

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