Flexible working is currently a hot topic for UK businesses, as employers build on experiences from the pandemic, and look to attract a diverse range of talented individuals to any vacant roles. With the Employment Relations (Flexible Working) Bill (the Flexible Working Bill) having passed the House of Commons, this article considers what it does – and does not – do, as well as posing some wider questions on the future of the work environment.
Current provisions
To summarise the regime at the moment, any employee with more than 26 weeks’ service may make a statutory request for flexible working, to take place on a permanent basis. They may make one request in any 12 month period. This could involve any type of flexible working, for example:
- Hybrid/remote work
- Reduction in hours of work
- Change to the times of work
- Job-sharing
- Change in office location
Under the legislation, the employee is protected from suffering detriment (or dismissal) as a result of making that request. Employees are recommended to consider the relevant guidance on the Acas website, as well as their employer’s policy, if one exists, when making a request.
The employer then has three months to consider the request, discuss it with the employee (if appropriate) and notify the employee of the outcome. The employer must deal with the application in a reasonable manner, in line with the Acas Code of Practice, and can only refuse a request for one of the following eight business reasons:
- the burden of additional costs
- an inability to reorganise work amongst existing staff
- an inability to recruit additional staff
- a detrimental impact on quality
- a detrimental impact on performance
- a detrimental effect on ability to meet customer demand
- insufficient work for the periods the employee proposes to work
- a planned structural change to your business
If a request is refused, the employee should have the right to appeal. The legislation does not provide for any trial periods, and any agreed change is in principle permanent, but employers and employees are free to agree a temporary trial period between themselves if there is concern as to how the arrangement would work.
Forthcoming changes
In December 2022, the government published its response to the consultation Making flexible working the default, and committed to supporting the Flexible Working Bill, which seeks to make changes to make the regime more flexible.
In summary, the Flexible Working Bill will:
- require employers to consult with their employees, as a means of exploring the available options, before rejecting a flexible working request
- allow employees to make two flexible working requests in any 12 month period
- require employers to respond to requests within two months, down from three
- remove the requirement for employees to set out how the effects of their flexible working request might be dealt with by their employer
In addition to these changes, the Government committed to changing the qualifying period before an employee can make a flexible working request, to make it a ‘Day One’ right.
Impact on employers
There is currently no timescale for the proposed changes coming into effect - the Flexible Working Bill still needs to go through the House of Lords, where there may be some further amendments proposed. However, some businesses may already look to implement, if they haven’t already, the option for new employees to request a flexible set-up immediately, to attract the widest possible array of good candidates for vacant roles.
With the increased ability of employees in some sectors to work remotely, many employers may already have introduced a hybrid/remote work policy that goes beyond what is set out in the Flexible Working Bill. It is important to bear in mind, though, that these statutory provisions don’t just apply to the location of work, but also to how and what hours are worked by employees, and so any hybrid/remote work policy will supplement rather than replace these statutory provisions.
Similarly, while flexible working is often considered in the context of those working office jobs, it can be relevant in different fields of work. Marks and Spencer made headlines back in November when they announced a compressed-hour option for managers, which had the benefit for the stores of increased hours of work, and for the managers of having an extra day off each week or fortnight. Employers should be thinking creatively to consider what they can do to meet the requirements of the legislation and needs of their staff.
If you would like to refresh or introduce a flexible work policy in light of the most recent developments, please speak to a member of the Shepherd and Wedderburn employment team who would be happy to assist.