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Sofia Syed

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Legal guidance: handling flexible working requests

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 This article was written by Sofia Syed, employment solicitor at Mundays LLP.

Despite Yahoo CEO Marissa Mayer ‘s announcement to all employees that ‘speed and quality are often sacrificed when we work from home’, flexible working remains one of the biggest changes to the workplace in the last 20 years.

Flexible working can include job shares, working ‘core hours’, part –time as well as from home. For many workplaces, this is a positive thing and forward thinking firms should be embracing a more flexible workforce. The key change which has made working flexibly and from home more viable are the advances in technology over the past five or so years – superfast broadband, cloud computing and smartphones have all meant that employees from most industries can be connected and set up an office pretty much anywhere.

Employers like Yahoo may be shying away from allowing employees to work from home but the trend is definitely moving towards a more flexible and fluid workforce. However employers moving with these changing times do need to be vigilant especially when deciding who can work from home and dealing with the request and its related issues.

Who can work from home?

Many companies have their own internal policies on entitlement and if so, those policies should be applied and followed consistently. In the absence of a company policy the law entitles employees with 26 weeks’ continuous employment to make a request to work flexibly if they care for a child under 17 or a disabled child under 18 or have adult caring responsibilities. Employees can only make one request in a 12 month period and the right is limited to a right to request flexible working and not an express right to work flexibly. However, requests should be treated seriously by employers and only rejected if they fall within prescribed business-related grounds.

The Government is very keen on flexible working and has announced its intention to extend the ‘Right to Request’ flexible working to all employees. The extended entitlement which is expected to come into force by 2014 is intended to be less bureaucratic and will set out guidelines for employers on how to respond to a properly made request.

Dealing with the request

Employers need to be prepared for flexible working requests from everyone, not just parents, and have the right system in place to respond to requests promptly.

This is particularly important because employers who refuse requests to work flexibly without a prescribed business reason are potentially at risk of a claim under the discrimination legislation as well as a separate, albeit limited, claim for any breach of the right to request procedure.

Contracts and Policies

Once an employer has agreed to flexible working they should review the employee’s contracts and their management processes and policies to ensure they meet the needs of a home worker and rules are applied fairly and consistently.

For example, the employee’s contract will need to be changed to deal with matters such as: their place of work, requirement to attend the office for certain meetings, break times, hours of work and method of supervision. The Employer should review for example, the following policies: flexible working, formal appraisals and monitoring, health & safety, data protection, security and information and communication to ensure all parties are aware of the guidelines.

Trial Period

Employers should implement a trial period which can help both employee and employer work out a satisfactory arrangement and assess the viability of flexible working. If problems emerge during the trial period and the employer subsequently decided to refuse the request he would be able to rely on this as evidence in the event of any discrimination claim.

Conclusion

When handled properly, flexible working arrangements can be a business-savvy and forward-thinking move for employers. The cost-saving benefits are palpable, the retention rates post parental leave are significantly higher and businesses with homeworkers won’t be disrupted by snow or cancelled trains.

With the Government’s plans to extend flexible working to all coming along in a year, businesses should be looking at getting ahead of the curve and getting the right contracts and processes in place now.

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