With the Employment Relations (Flexible Working) Bill rapidly making its way through the UK parliament, employers are becoming increasingly concerned about how their obligations will change in relation to flexible working requests from staff members.
Flexible working allows employees to “flex” traditional working arrangements to suit their specific needs. This may be through altered or staggered start times, reduced hours, compressed workdays, or home working.
The current position is that an employee must have 26 weeks’ service before making a flexible working request, and only one request can be made per year. An employer is required to deal with a request in a “reasonable manner” and provide a decision within three months. A request can be legitimately refused if an employer demonstrates that one of eight statutory reasons applies, such as where the request would result in additional cost for the business or an inability to reorganise work amongst existing staff, or where the request would have a detrimental impact on the quality of work. If a flexible working request is approved, it will result in a contractual change to the employee’s working arrangements.The bill introduces four key changes to the current statutory regime:
- Employees will no longer be required to explain how they think any effect of their flexible working request could be dealt with by their employer. This will likely make the process of making a flexible working request less daunting for employees, and possibly increase the number of requests. It will place responsibility on the employer to consider how they might mitigate the impact of the requested change, when arguably the employee is better placed to do this.
- Employees will be able to make two flexible working requests in any 12-month period. Employers may see an increase in the volume of requests being made each year, and consideration should be given to any additional time and resources required to deal with these. This will heighten the need for employers to deal with such requests consistently, and require the relevant circumstances to be kept under constant review.
- Employers will need to consult with employees before rejecting a flexible working request. This will create more dialogue between an employer and employee and will increase the chances of both parties finding a solution or middle ground, or at least better understanding the other’s position. Such conversations will need to be managed carefully, and appropriate training given to managers in how to conduct them fairly and consistently.
- Employers will be required to approve or reject a flexible working request within two months. This will make flexible working a more responsive process, at the same time as reducing any prolonged periods of uncertainty for all parties.
Uncertainty during recruitment
While not part of the bill, the government also intends to introduce a right for employees to request flexible working from day one of employment. This will likely be introduced by way of regulations, after the bill is passed into legislation. This may create further additional challenges for employers, with one potential issue being that, having negotiated an agreed working arrangement with a new employee as part of the recruitment process, employers could be faced with a request from that same employee to work flexibly on the day on which they start work. Ordinarily, one might expect an employee would agree the flexible working arrangement as part of their recruitment process, but employers can no longer be as confident that the working arrangements they have negotiated and agreed with new starters are acceptable to those employees. This new legislation will make it much easier for employees to get “a foot in the door” by starting employment on traditional working arrangements and then immediately requesting to work flexibly, despite what contractual arrangements were agreed.
Not a guaranteed right to work flexibly
It is recognised that there is no “one-size-fits-all” approach, and it is important for employers to remember that this bill still only allows employees the right to request flexible working, rather than a right to have it. Certain sectors and industries will be more able to accommodate flexible working. The technology sector quickly adapted to a flexible way of working during the pandemic and many tech companies are likely to continue with those arrangements. On the other hand, the retail sector requires employees to work set hours and shifts to cover customer demand, and has historically struggled to accommodate flexible working for this reason. The business reasons for rejecting a flexible working request remain the same – however, the revised regime may now apply additional pressure to certain sectors to explore alternative flexible working options, such as job sharing.
Consider introducing an agile working policy
Employers will no doubt be considering how they can prepare for these anticipated changes. Hybrid or agile working policies are a great way to open up a channel of communication with employees and allow employees a degree of control over the way in which they work, without the need for them to make a formal statutory request or for those working arrangements to become contractual. Any written policy should direct employees to the procedure to be followed if an employee wishes to make a formal flexible working request. This will not only manage an employee’s expectations, but also ensure there are fair and consistent outcomes.
Risk of discrimination claims
If the employer fails to follow the statutory procedure, the employee may claim up to eight weeks’ pay (capped at £643 per week from 6 April 2023). However, employers should remain alive to the risk of discrimination claims when responding to a request, particularly where the request is motivated by a protected characteristic. For example, where a request is made for childcare reasons, the applicant may have a claim of indirect sex discrimination if the request is rejected. Likewise, requests may be made for religious reasons or because the worker is disabled. The employer may be required to consider a request that would otherwise be ineligible under the statutory regime or to go further to accommodate a request,
even where the employer can establish one of the statutory grounds for refusing a request. Discrimination claims can be costly to defend and, if successful, an employee would be entitled to a compensatory award (which is uncapped) and an additional award for injury to feelings. A finding of discrimination against an employer may also negatively impact its reputation and potentially put the employer at a commercial disadvantage when tendering for work.
Embrace the changes
If the changes to flexible working regime result in the granting of more flexible working requests, this may have many positive results for employers, particularly when it comes to recruitment and retainment. Adapting to flexible working arrangements means employers can expand their candidate pool, which would otherwise be limited to those who are able to easily step in to a traditional “9 to 5”. It also has a positive impact on employment opportunities for certain demographic groups, such as those with childcare responsibilities or disabilities, and should lead to a more diverse, happy, and productive workforce.
The government has not set out a timeframe for when the Employment Relations (Flexible Working) Bill will come into law.
This article was first published in International Employment Lawyer and can be accessed here.