How flexible is too flexible when dealing with requests at work?

In the current working climate flexibility around working environments and times are paramount. This needs to be respected, but are managers still able to say ‘No’ to requests in the post-COVID world?

This is an edited version of an article that originally appeared on Management Today

Flexible working has jumped to the top of many employees’ priority lists in recent years, but how does this affect managers? As recently as 2019, one-in-three requests for flexible working were actually rejected – and often it wasn’t that difficult to do. Employers merely had to choose from a list of sanctioned reasons – including additional cost, a detrimental impact on the ability to meet customer demand or on performance quality.

However, with COVID-19 leaving 86% of the population working at home, at least for some time during the past 18 months, the government believes flexibility to be the new norm. So, do employers now have any legs to stand on if they still want to say ‘No’ “Technically the government’s proposals only change the right to request; the reasons for a refusal remain the same,” says Andrew Rayment, partner, Walker Morris LLP.

“So, in theory, nothing’s changed – except everything has changed. With so many employees ably managing their work during the various lockdowns, many will have already gone some way in proving they can carry out their role successfully flexibly going forward. There is now likely to be much more scrutiny around any refusals, especially if an employee can claim it creates indirect discrimination.”

Making employees wait six months before even being allowed to make a request enabled employers to gather some evidence of their performance; the proposal to allow flexibility from day one, for unproven staff, may well worry some managers and business owners. Andrew Monk, CEO at VSA Capital, has been outspoken on this issue and the potential ‘abuse’ of flexibility. Speaking to MT, he says flexibility ‘should’ remain a perk and not a given, arguing for at least a three-month period of probation.

“Overall, I have no issue with someone who wants to work part-time for a part-time salary if it works for both parties,” he says, “but the government doesn’t need to legislate this – it should just be a conversation between employer and employee.But people need to go into offices for all sorts of reasons – younger staff to learn, older to teach, to have communication, structure and human interaction.”

Rather frustratingly, granting a right to request flexibility from day one could actually make a refusal even harder – as newbies will have no performance history (good or bad) for managers to use to decline them. So what then? “Managers simply must go on trust first,” argues Oliver Sissons, SEO manager at marketing agency, Reboot. It moved to a four-day week earlier this year, and has pledged to offer this arrangement to staff from day one. “We have tons of KPIs we measure staff on to see if they’re keeping up, so measurement will be there to see if it’s working. But we just prefer to offer our trust from day one and then use KPIs down the line to see if things need tweaking or not.”

So what should you do if you think an employee can’t work flexibly?

1. Employers may still refuse a request for one of the eight specific reasons set out in legislation, but they must be aware that an employee making a request is protected under the Equality Act. Turning down a request could be amount to unlawful discrimination, direct sex discrimination, indirect sex discrimination, indirect religion or belief discrimination.
2. Employers should really think hard about whether the reasons they have to reject a request can be substantiated. Employers may find it hard to prove that there will be detrimental impact on quality or performance of work in the long term – especially if there was proved to be no impact throughout the period of lockdown.
3. Make sure you consider requests in a manner that will hold up in a tribunal – for instance, you must record how the decision was made, complete with strong evidence to support it.
4. Maybe consider a balance; accept a request but stipulate that it is for a trial period first, after which performance detriments (or otherwise) can then be assessed.