Flexi work request confusion

[BurritoTamer]

Will try to stick to just the salient points

Had a flexi agreement since mid 2024 for full time compressed hours and 40% office, 60% home hybrid split

I made a new flexi request in early Feb to go part time, and including the 40% office, 60% home split. So same hybrid pattern, different hours (less hours each day, so proportionally the same as before)

After a very lengthy process, I received a letter that said (in summary)
”I agree to the hours on a trial basis and the hybrid pattern will be decided at my discretion as required”

I pushed back on this requesting clarity, essentially, I need this to be formal. For me a formal denial is better than wishy washy.

Manager has come back and said:
“The flexible working is based around a pattern of working hours that you have requested.
The hybrid pattern should be based around working from home/office. Policy is 60% office, 40% home. Your current proposal does not match, can this be adjusted please? Hybrid working is an informal and flexible agreement and can be changed at short notice.

I would not be willing to accept a formal approval to hybrid working that does not match group or the teams requirements that is currently in place. I also previously asked teams with hybrid/flexible working to adjust them inline with the latest requirements, which currently is not being complied with”

Is he correct? I thought the whole point of flexible working requests was seeking variation from the “norm” or the policy?

if I have to change my request to fit into policy, what is the point of it as a process?

Can anyone please advise? HR are on the thread and are quiet so I’m assuming he’s right?

I do see this argument but what of the 8 reasons can they say now that hasn’t come up since 2024? Surely suddenly saying I need to 60% office time to collaborate means less when I have a proven track record?

Exactly this, they're using it as an opportunity to align the OP. But they do need a reason to decline her request (as I've mentioned), once she knows their reasoning she can either agree, or continue down the formal process

Not always a contractual change.

You haven’t detailed how it works now or how it would work under your proposal, but it is entirely possible for them to say you attending significantly less would impact on quality of work/servicing client needs.

Not sure who this is aimed at, but she had a contractual change, agreed by both parties a few years ago. They can't unilaterally change those terms, same way she can't either hence they're going through this process.

I'm struggling to understand what point you're trying to argue

@BurritoTameri agree with you to a point but they may same the combination of the reduced hours and therefore even less time in the office (say it's going from 2 to 1.5 days) that they'll say won't work, as if you keep the % split that does mean less time in the office.

It's why your current performance is an argument for but doesn't pre determine the outcome. You need to understand their reasons for declining before next steps

You are wrong. I work in employment law.

1. OP stated in her email it states the 2024 request will be permanent after the trial period. The trial period has ended, and thus the change is permanent as per the employment law.
2. statutory flexible work request are Statutory, meaning legally formal and a legal employment right. Thus, unless a trial period or a temporary change has been agreed, an approval results in written formal change to contractual terms and conditions
3. As per the above, variations can happen through another request or a process that HR must follow where OP signs new contact which technically cannot be on worse terms.
4. OP is legally entitled to request another change. However, if she does not want to change her hybrid pattern which was agreed in writing formally, the employer has absolutely no legal ground to unilaterally change that, because she is making another request.
5. Given both requests are related to pregnancy and maternity there is health and safety risk plus any unilateral change can constitute indirect sex discrimination.
6. The fact that the role has been carried out in such pattern successfully for 2 years, strengthens the case for point 5. OP has ground to ground to claim her employer is using their new hybrid policy to force her to leave. This is in fact on the raise..

OP please contact ACAS and if possible an UNION, keep it all in writing and do not agree to sign anything yet. I appreciate that previous poster has HR experience, but in my experience most HR departments are terribly confused about employment rights and what is legal, particularly with all the changes that happened to statutory legislation and flexible working in the past few years.

@cucumber4745thank you! Completely aligns with my understanding and my approach/ practice (I'm HR)

The business has changed its policy to meet customer demand/flexibility/balance workload so employees need to be in the office 60% of the time. They have honoured your 2024 agreement but as you want to change it they are aligning you to new policy.

You were working 37.5 hours full time with 40% ( 15 hours) in the office and 60%( 22.5 hours) at home. By reducing your hours to say 30 hours then 40% is 12 hours in the office and 60% is 18 hours at home.

What they are asking for is 3 extra hours a week in the office to make 18 hours. I would go back with an offer of 50% I.e. keep doing 15 hours a week in the office with Wed PM as WFH.

To add any refusal can be on the basis of the changed hours as that can be legal reason, however, if they confirmed that the change to hours is ok in writing, but are questioning the pattern - they can’t necessarily refuse that.

A compromise may be to keep the same number of days in the office. Let say if you do 2 days now over 5 working days, then continue doing 2 days but over 4. This reasonable compromise and they will struggle to find legal reason to refuse it.

If you need 1 day in the office or fully remote, then as per my previous comment please consult ACAS rather than mumsnet :)

Nope! This is not a legal reason! It is internal policy and return to office blanket processes etc absolutely do not fall in the above. The business has to show significant impact, which they cannot, because the role has been carried out successfully in this way for years.

A manager demanding everyone change their flexible arrangements is not legal. Furthermore, every request needs to be considered on a case by case basis. That is the whole point of it.

Businesses are using these mandates to force people to leave. And OPs line manager is clearly clueless about her rights and processes

@cucumber4745 would you be able to clarify please if OPs currently approved flexible working request is one entity of 'compressed hours and 60/40 home/office'

Or 2 seperate things being 'compressed hours' and '60/40 h/o'

I'm wondering if the situation is that OP had an original contract, had a contractual variation which effectively made a new contract, and is now requesting a change to the new contract - in which case is the 60/40 moot because that's already agreed (assuming it does say 60/40 and not specific hours/days which op wants to change)

Or if the act of requesting a second change means it reverts to the original contract and anything agreed under the last request is void. That doesn't seem like it could be right?

Oh interesting. It seems not as cut and dry as he’s making it out. I did speak to Acas and they said they said I should consult a legal representative to challenge what they’re saying in line with your points. The problem is time, I feel like my manager is banking on this lengthy process to force me to sign something that’s not in my best interest. My childcare issues are still a problem whilst this is ongoing

Thank you this sums up my current query!

My new request re: hours is new
My new request re: location pattern is as per agreed 2024 FWR

Does the fact I’m asking new hours allow them to trigger justification into the location pattern?

Get on to ACAS and your union, OP, as that will be the best advice for your circumstances.
People on this thread can only advise generally.

Without intimate knowledge of the business in question no one on here can say definitively whether or not there is a significant impact if an employee further reduces their time in the office. The op is naturally biased (as we all are) and maybe unaware of the impact on other employees and the business if they work even less hours in the office.

Ultimately it is a right to request not a right to have and as per ACAS guidance partially agreeing a request is an option with the right business justification.

I am not a lawyer, I work in employment rights advice, but yes that is my understanding.

The original request, made two changes to mode of work 40/60 and the pattern of hours. So that is her current contract. Any new change happens on the basis of that new contract (it does not revert to the old one).

So the risk for an employee, when making statutory flex request is that if the change is permanent the employer can refuse reversal to the original terms. They can absolutely refuse the request for reduced hours.

If the hours were reduced permanently, then the employer is within their right to refuse giving OP full time hours. So, they cannot unilaterally change the terms. It is very risky.

If they do not respect the current employment agreement, an OP is forced to leave, she could have a claim for constructive dismissal. The one way for them to change a contract is through fire/rehire. But these are costly and risky and no reasonable employer will subject themselves to that over 20% attendance.

I had similar drama with HR over the hybrid policy and they insisted to know better than the employment lawyer they hired, it was embarrassing.

But this is why the general advice with hybrid relating to pregnancy and maternity is to go down the “health and safety” route first, and then potentially firm up the agreement through statutory requests as these are hard to reverse.

Can you get legal advice? Unions usually have lawyers, alternatively working families may help.

I agree you need to speak to a lawyer. Don’t sign anything. You can request parental leave while dealing with these and some companies have special leave for childcare emergencies.

Do not sign anything as if what you sign doesn’t work for you in the long run, it can escalate to constructive dismissal.

I’m arguing that it might not have been a contractual change. We don’t know that it was.

Depends on the exact days in the office. Again, they need to show the impact, which they have not. This is the hybrid policy is not a legal business reason regardless of the exact details of the business. As I said previously if the role was carried out in this way and they cannot show negative impact, they cannot now suddenly show the opposite- it won’t stand in tribunal. If the business had genuine business reason, they would have no issue demonstrating evidence of that to OP. The fact they have not, shows this is not the case and should OP had not made a new request, they would not raise it.
Additionally, this pattern is part of her contract, it will come down to wording in the original request eg., 40/60 or 2 days in the office but either way it cannot be unilaterally changed

Where are you getting the info from point 1 from? I’ve re-read OP’s posts and can’t see this?

I’ve posted the ACAS guidance which states FWRs might create contractual change, not that they do. The company is required to outline the contractual changes within a month and again, I can’t see any reference to this from the OP’s posts.

(My HR experience spans over 20 years and I haven’t lost an ET yet.)

I fundamentally disagree with you. I won't keep going back and forth but it's concerning you think it's still ambiguous given all the info given

OP said it was statutory requests and confirmed it was “permanent change after the trial period”

Just looked back through and had missed that post. (I’m on some heavy post-op painkillers so missed it earlier.)

it is in her comments not her original post.

ive just seen that the form they’ve approved in 2024 says
“The outcome of your request will confirmed to you in writing and if your request is
granted, there will be a standard three month trial period, if successful, it will mean a permanent change
to the terms and conditions of your employment, unless agreed otherwise.“