Coronavirus: will employers see an increase in flexible working requests when lockdown ends?

Within the space of a single week running from 16 to 23 March, the prime minister, Boris Johnson, urged anyone who could do so to work from home, closed schools, nurseries and many non-essential workplaces, and imposed severe lockdown restrictions, all with the aim of minimising the spread of coronavirus. That week arguably changed the British working landscape beyond recognition. Millions of workers have had to adjust to working from home. Many others saw adjustments to their working patterns to reduce their risk. As workers have adjusted to their new ways of working, many may not be keen to relinquish their newfound flexibility. As a result, employers may see a big increase in flexible working requests going forward, especially now that some of the lockdown restrictions have been lifted and employees who are unable to work from home are being actively encouraged to go to work. This article considers the rules regarding flexible working requests and some of the key issues employers may face when dealing with those requests.

What does the law say about making a flexible working request?

Employees with 26 weeks’ continuous service have the statutory right to apply for flexible working. They do not need a specific reason for making such an application. One formal application can be made each year. Employees can request changes to the number of hours they are required to work, the times they are required to be on duty and/or to the location of their work (for example, working from home). The application must be in writing, dated, and must:

• state that the application is being made under the statutory right to request flexible working;
• specify the proposed flexible working arrangement and the date on which the employee would like it to start;
• explain what effect, if any, the employee thinks the proposed change would have on the employer and how, in their opinion, it can be dealt with; and
• confirm whether a previous application has been made to that employer and, if so, when.

Employers must deal with a flexible working request in a reasonable manner and give reasonable consideration to the requested flexible working practices. Requests should generally be dealt with within three months. Employers are only permitted to reject a request on specified business grounds, namely:

• burden of additional costs;
• inability to reorganise work among existing staff;
• inability to recruit additional staff;
• detrimental impact on quality;
• detrimental impact on performance;
• detrimental effect on ability to meet customer demand;
• insufficiency of work during the periods the employee proposes to work; or
• planned structural changes.

In addition to this statutory right to request flexible working, employees and workers may make ‘informal’ requests to work flexibly (for example, by agreeing temporary flexible working arrangements directly with their line manager), or request reasonable adjustments to their working conditions to remove disadvantages they suffer because of a disability.

Why might employers see an increase in flexible working requests after lockdown ends?

The right to request flexible working was first introduced, by the Blair government, in April 2003.  However, very slow progress has been made over the last 17 years. While some employers have fully embraced agile working, the only ‘flexible’ option many others would consider was traditional part-time working.

The guidance that those who can work from home must do so has given employers who might otherwise have been reluctant to allow widespread homeworking no alternative but to embrace it. Millions of workers have had to adjust to working from home. Businesses have been forced to invest in remote working technology, and to quickly adopt new methods of working to ensure staff get the support and supervision they need. Many managers have found that their teams have overcome any initial challenges and are in fact coping very well during lockdown.

As workers have adjusted to their new ways of working, many may not be keen to relinquish their newfound flexibility. They may have seen major improvements in their work-life balance, as a result of reducing the amount of time lost to commuting. Some may have seen their stress levels reduce and their mental wellbeing improve. This landscape means that employers are likely to see a big increase in flexible working requests after the lockdown restrictions are lifted, with some employees keen to continue agile working.

Even the recent shift in emphasis in the guidance such that those who cannot work from home are now actively encouraged to go to work may result in an immediate influx of flexible working requests. Parents of young children who cannot yet go to school or nursery, for example, may need to ask for additional flexibility to help them balance their work and childcare responsibilities. While these challenges may be temporary in nature, some employees may see this an opportunity to seek more permanent changes to the way they work.

Why might employers find it harder to reject flexible working requests after lockdown is lifted?

As we explained above, employers can only reject a flexible working request on specified business grounds. Many businesses are likely to find it increasingly difficult to rely on these business grounds to justify saying no to flexible working. How can a business that has invested in remote working technology rely on the burden of additional costs to reject a request to work part of the week from home? How can a business that has successfully operated remotely for the last few months argue that remote working will have a detrimental impact on quality, performance, or the ability to meet customer demand?  

The practical reality is that the recent giant leap towards widespread homeworking has, in many cases, proven more successful than some business leaders imagined. The perspectives of many leaders, customers and employees have changed. They are embracing alternative ways of work, and managers have found that employees can be trusted to do their work without micro-supervision. Indeed, many businesses find that productivity increases when people work remotely. One business leader was quoted as saying: ‘The realities of working remotely have destroyed many of the myths’.

Was homeworking already on the increase?

It is true that over recent years there has been a gradual increase in homeworking. Recently published figures from the Office of National Statistics (ONS) show that, of 32.6 million people in employment, around 5.1% (1.7 million workers) mainly worked from home in 2019, compared to 4.3% in 2015. An even greater number of workers said they worked some of their time from home (for example, around 20-25% of professionals, directors and managers said they had worked from home in the week before the survey).  It seems highly likely that one lasting impact of the coronavirus pandemic may be the acceleration of this trend for homeworking. 

What are the positive benefits homeworking and flexible working can bring?

Homeworking and other forms of flexible working are increasing in popularity with workers. Research published by HSBC in 2017 found that 89% of employees surveyed considered flexible working to be a key motivator, compared to 77% who cited financial incentives. Working flexibly can lead to major improvements in an individual’s work-life balance, allow them to cut out hours wasted to commuting and make childcare demands easier to juggle. A 2019 study found that 39% currently working flexibly notice an improvement in their mental health; 43% of people whose employers do not offer flexible working feel it would positively impact their mental health if they were able to do so.

Managed well, agile working can also bring great benefits for the employer. Many employees find they produce more and better quality work in less time if they work from home where there are fewer distractions. HSBC’s 2017 study reported that 81% of workers believe working remotely improved their productivity. Agile working can also greatly reduce the amount of physical space a business needs (thus decreasing overheads).

What about roles that cannot be done remotely or flexibly?

There will always be some roles that cannot be performed remotely because they require a physical presence in the workplace. For others, customer demand will require more staff to be available at peak times, making flexible working hours a challenge to accommodate. Businesses will continue to be able to rely on the business reasons outlined above to reject flexible working requests from staff working in these roles. However, even in industries where the bulk of the work cannot be done remotely and other forms of flexibility are challenging to implement (such as retail, manufacturing, hospitality and the care sector), there are likely to be some roles which are suitable for agile working.

Perhaps one legacy of the coronavirus pandemic will be an increased willingness by businesses to consider flexible working as a viable option. Some employers are likely to move beyond merely tolerating agile working, towards actively embracing and encouraging it because of the many benefits it can bring. It is possible that we will look back at this time as being a major catalyst for change.