Flexible WorkingHere is another question which came up more than once at last week’s webinar on Managing Working Parents but which I was unable to get to at the time.

If you receive a flexible working application now, can you “park” it until things settle down and you have a clearer picture of what your post-pandemic needs for office-based staff will actually be?

Yes and no.  No, in that the rules require the process of considering a flexible working application to have been completed within 3 months of the request.  Failure to do so may exposure the employer to a compensation claim of up to 8 weeks’ pay subject to the statutory £538 per week cap. Note that this is not conditional upon the employee showing that the delay actually made any difference to the end result. It is probably possible in theory to defer this timetable by express agreement with the employee, but there is little to be gained by the employer from doing this, not least since it extends the period over which the employee is WFH without a formal assessment being made of whether that is actually working to the benefit of the employer, or what needs to change to make it do so.  That can only weaken the employer’s position later as and when it tries to unwind that arrangement. It would also leave the employee without the security of knowing that his WFH arrangements have been agreed to even in the short term.

But also yes, in that you can build into the response to the flexible working application the ability to revisit the question as and when your particular new normal becomes clear.  The same is true not just for the black-or-white grant-it-or-not question, but also within the detailed terms on which WFH is agreed to. You may well anticipate that days or hours may need to change as more people return to the office, that additional responsibilities may need to be shouldered or that reporting lines may change, but even if you can’t be specific now about how or when (and who can be?), it will benefit you as employer to indicate expressly in your agreement with the employee that all these things may have to be looked at again in the light of future developments.

The starting point for any variation of contract procured through a flexible working application is that it is permanent.  But “permanent” does not mean set in stone forever, immutable in any way.  Contractual terms which are permanent can still be ended or changed, ideally by agreement with the employee but if necessary without it, a process made much easier if the employee understood that possibility from the outset. It is also possible to agree flexible working arrangements to last for particular periods of time or to end on particular events, but it might be a brave employer (and indeed employee) which would commit itself in that way just at the moment.

Therefore I would expect most flexible working applications being granted at this stage to be qualified to some extent.  This might be by an express trial period unwindable by either side on a set date, or by a certain period of notice being given from one to the other.  Alternatively, you could focus on pure expectation management through a simple statement in your agreement to the WFH terms requested that while you are happy to entertain them now (subject to XYZ terms), you might need to revisit the arrangement as a whole or any of XYZ if and when the pandemic tide goes out and you can see what you are left with. As we have said before, including success criteria for the WFH can also give both sides a clear sign of when the arrangement has reached the end of its natural lifespan.

Clearly a contractual right to terminate a WFH arrangement is legally preferable, but for that right to be enforceable you have to be reasonably clear about the circumstances which will justify the exercise of it.  Even then, it would still be preferable to put the proposed partial or total withdrawal of the WFH to the employee and seek his/her views on it before any final decision is seen to be made.  The same is true in spades for the reversal of a WFH agreement which does not contain a specific right on the part of the employer to end it – so ideally you should propose, consult, consider and then decide in that order, rather than the more common decide and what were the others again?  Your clear heads-up at the beginning that the arrangement may not be forever will carry some considerable moral and cosmetic weight here.

In either case, the employer cannot just reverse a WFH arrangement merely because it said it might.  It needs a good reason, a reason which would have entitled it to say no to the WFH arrangement had it applied at that time. That means one or more of the eight acceptable grounds for rejecting a flexible working application in section 80G Employment Rights Act 1996 (basically any material adverse impact on the business).  The employer will also need the evidence to back that up, a burden which will be particularly heavy if by the time it pulls the plug, the employee has been WFH for the thick end of a year without obvious problems.

It is therefore our recommendation that employers should not seek to park flexible working applications but should instead deal with them in detail now, confident that if circumstances internal or external to the business later genuinely require things to be changed again, they can still do that. Formalising such arrangements on a timely basis will prevent a slide into what may otherwise become a largely free-form workforce whose hours and place of work are governed not by the requirements of the employer but by their individual personal circumstances and preferences becoming crystallised into contract through custom and practice and/or by employer inertia and its consequent inability to argue that there were problems enough to justify anything different or more structured.