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Why Providing Flexibility Could Cost Companies Dearly
September 8, 2020
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BY Musab Hemsi

There is no doubt that the COVID-19 pandemic has drastically accelerated the shift towards more flexible working practices across the economy.

Remote working was a simple necessity at the start of the pandemic, but it’s clear that many of the habits we’ve adopted during this period are here to stay.

For employees, this brings many benefits, with better work-life balance, more free time and less money spent commuting. Meanwhile, employers may be able to reduce their reliance on expensive office spaces.

However, many employers will not be aware of the potential legal implications of how they handle requests for flexible working as we look beyond the pandemic. Here’s what employers need to know.

In 2014, the rules on flexible working were changed to enable employees with over 26 weeks’ service to request a change to their working hours, the times they work and their place of work.

This legal framework is underpinned by a statutory regime, which requires employers to formally decide on any request for flexible working within three months of receiving a request. This process can be extended by agreement with the employee.

Legally, there are only a handful of reasons an employer can refuse a request for more flexible working. These mostly relate to an impact on customers, colleagues and their ability to carry out the work within the new arrangement.

However, many employees will have found that their ability to carry out their work has not been compromised while working remotely during the pandemic. In fact, many have reported an increase in their productivity, with more flexible working arrangements. In light of this, employers should be aware of the possibility of appeals if they refuse applications on these grounds.

Another legal nuance employers should be aware of is that mishandling requests for more flexible working could expose them to unlawful discrimination claims.

This is especially true in relation to employees who have childcare or disability issues that restrict their ability to work in accordance with traditional working practices.

If a decision to refuse flexible working arrangements to an employee has even an unintended effect of discriminating against that employee based on a protected characteristic, employers may find themselves in hot water.

For example, refusing a disabled employee the ability to work flexibly may count as unlawful discrimination if the employer’s premises are not designed to accommodate wheelchair users.

It’s therefore key to have a positive dialogue with employees who request flexible working and to understand their reasoning. This results in both better outcomes for the employee and protects the employer from the risk of potentially costly and time-consuming legal consequences.

Ultimately, employers should work to ensure that they have a robust and comprehensive system in place to handle requests and ensure that managers are well-placed to take decisions with proper business rationale, while enabling employees to set out their case for flexible working.

Unfortunately, we find that many employers approach flexible working requests with a closed mind. This is usually an error, and employers would be far better off maintaining a constructive dialogue with employees who make flexible working requests and trying to accommodate their requests.

The COVID-19 pandemic has opened the eyes of many businesses to the potential of drastic changes in working practices without compromising on the quality or quantity of work. As we look to the future, employers would be wise to consider the potential of embracing flexible working in a way that benefits both the employer and their employees.

Musab Hemsi is partner at LexLeyton


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