Changes To Flexible Working

person working at desk

Written By David Evans

September 29, 2021

Changes To Flexible Working: UK Staff to Gain Right to Request Flexible Working from Day One

Introduction

Following more than a year of enforced working from home, UK employers anticipate an influx of flexible working requests once restrictions ease and staff begin to return to the office. A survey conducted in early 2021 by Ernst & Young (EY) backs up this point as they found nine in 10 people surveyed stated they wanted more flexibility about where or when they work once pandemic restrictions ease.

Of those surveyed, only 22% said they would choose to go back to a traditional full-time office-based working week. The others indicated they want to work from home between two and three days a week, and 33% want a shorter working week altogether.

The Department for Business, Energy and Industrial Strategy (BEIS) published a government consultation document on the 23rd September 2021 that proposes giving employees the right to request flexible working from the first day they start a job. Employers will also be obliged to respond to such requests more quickly and explain their reasons if the request is refused.

The consultation document is part of the UK government Good Work Plan programme. It is being billed as a significant reshaping of how people work in a post-pandemic world – making flexible work the default. It is understood that the key recommendation will be to allow employees to ask for flexible working from day one of a job rather than the current six-month wait.

Current Flexible Working Rules

Since 2014, all employees that have worked for a company for more than 26 weeks have a right to request flexible working. It can be for any reason and refers to numerous arrangements – including part-time work, compressed hours over fewer days, remote working, flexitime, and job-sharing arrangements.

Employers have to deal with requests reasonably and can only refuse a flexible working request for one or more of eight business grounds specified in the legislation. With the looming increase in flexible working requests, employers should take this opportunity to review their flexible working policies and ensure that any changes following their experience during the pandemic are accurately reflected.

Employees have the legal right to submit flexible working requests if:

  • They have worked for their employer for 26 weeks or more
  • They are classed as legally employed
  • The employee has not made any other flexible working request within the past 12 months

 A flexible working request can be made if the employee wants to:

  • Reduce their hours to part-time
  • Make a change to their start and finish time
  • Have a range of flexibility with their start and finish time (flexitime)
  • Complete their hours over fewer days (compressed hours)
  • Work from home or elsewhere (remote working) all or some of the time
  • Share their job with another employee

 The flexible working agreement can be for:

  • All working days
  • Specific days or shifts only
  • Specific weeks only (like during school term time)
  • For a limited time (such as six months only)

Some employers have a flexible working policy that allows their employees to make a request even if they do not have the legal right. If the employee meets the above criteria or a flexible working policy facilitates, the employer must review the request fairly – adhering to the Acas Code of Practice on flexible working requests. The employer must then make a decision within a maximum period of three months.

Responding to Flexible Working Requests

Some businesses have thrived during the enforced home working periods and are opting to make remote working the norm for their employees. Others have found the new remote working arrangement better than expected and will be more open to flexible working requests than they would have been pre-COVID-19. With that said, the lockdown period has been a unique time, and there are legitimate business reasons some employers may seek to turn down a request for permanent remote working.

One of the most general statutory reasons for refusing flexible working requests has been the concern that a change in working conditions will negatively impact the quality of work or performance. However, employers are not restricted to comparing performance with that of a previous year. So just because their business did not grind to a halt during lockdown does not necessarily mean that remote working had no negative impact. Further, office based businesses are in a state of transition at the moment, with many opting for a partial return to work and a myriad of informal hybrid arrangements. As such, it may be difficult for some employers to accurately assess what might be a valid reason for rejection and just as importantly whether they can offer any other suitable alternative arrangement for discussion.

The crucial matter for employers is to ensure any refusal of flexible working is considered reasonably and is not discriminatory. This was very recently highlighted in the case of Thompson v Scancrown Ltd t/a Manors, where Mrs Thompson’s request to work one less day per week and leave an hour earlier to pick up her infant daughter was refused without proper consideration of the disproportionate discriminatory impact on her and ultimately resulted in her being awarded £185,000 in total compensation,   It is also vital that the employee is not subject to any detriment for exercising their right to submit a request. The employer should ensure compliance not just with the law but also with their own flexible working policy alongside the Acas code of practice. When there is a formal change to terms and conditions, employers should document it in writing.

An employer may have legitimate concerns about the effectiveness of remote working, especially when close supervision is required or aspects of a role do not work as well when team members are working from home. They may also require staff to be in the office a couple of days a week to facilitate effective collaboration, mentoring other staff, and integrating new team members.

The pandemic has undoubtedly demonstrated that new ways of working can offer opportunities. In jobs where flexible working arrangements are possible, both employers and employees can benefit from attracting and retaining talented professionals whilst still living up to corporate culture and values. Companies that do not simply pay lip service to the statutory regime and actually offer a full range of flexible working models will be seen as progressive and looked on favourably by those who value these arrangements.

Reasons For Changing Flexible Working Recommendations

Many UK employees face inequality due to a stark difference in employers’ approaches to flexible working. According to new research conducted by the CIPD (the professional body for HR and people development), 46% of employees say they do not have flexible working arrangements. The CIPD’s surveyed over 2,000 employees and discovered that although the pandemic has driven a massive increase in working from home, flexible working policies in the UK need updating:

  • 19% of employees say their employers offer no flexible working arrangements
  • 41% of employees feel it is unreasonable that some individuals can work from home while others have to continue to go into their place of work
  • 75% of employees agree it is vital that people who are unable to work from home should be able to work flexibly in other ways
  • Only 30% of the 2,000 employers who were surveyed state they are planning to try to increase the uptake of other types of flexible working besides home working over the next few months.

BEIS have highlighted that flexible working can be particularly beneficial for those who need to balance their personal lives with their working lives – including those with caring responsibilities. However, it can also be just as helpful to employers as flexible working arrangements attract more applicants and increase productivity and motivation levels among employees.

Although legislation came into force in 2003, which provided parents and other carers with a right to request a flexible working arrangement, it was not until 2014 when the right to request a flexible working arrangement was extended to all employees. The most recent 2021 consultation seeks to go further. Its proposals will affect employers who receive flexible working requests and employees who want to change their contracted working arrangements.

The Takeaway

If employers want to attract and retain the best talent, they need to provide the working environment people seek. The current trend is one-way, with businesses all over the UK shifting towards more flexible working patterns.

For a business to create a great place for employees to work, the option of flexible working arrangements is an important consideration and needs to be given careful thought. For more information on flexible working laws and how the new reform may affect you – contact EPR Law.

Frequently Asked Questions (FAQs)

Who is entitled to request flexible working conditions?

It is not just parents and carers entitled to flexible working conditions. All employees have the legal right to apply for flexible working – this is known as making a statutory application. The current caveat is that the employee must have worked for the same employer for a minimum of 26 weeks.

Do employers have to accept all flexible working requests?

Not all statutory flexible working requests have to be approved, but there are only limited reasons to refuse them. It is crucial not to discriminate against the employee when making the decision – it is worth checking that the reasons for non-approval are legal and valid.

How long does a flexible working request last?

If a flexible working request is agreed upon, it results in a permanent change to the contract. Both employer and employee can agree on a trial period to check that the arrangement works. It is also possible to decide on a temporary change in flexible working if appropriate. If the employee works different hours to those they were working before, they should be paid the same, but on a ‘pro rata’ basis.

Can an employer withdraw from a flexible working agreement?

Once a request for flexible working has been approved, and the permanent change to the contract has been made, the employer cannot make unilateral changes. If adjustments are made, it could lead to the employee making a potential claim for breach of contract and even unfair constructive dismissal.

Are there positives to approving flexible working requests?

Studies have shown that flexible working agreements can have enormous benefits for both the employee and the business as a whole. For the employee, they will have an improved work-life balance, potentially reducing unnecessary stress. On the other side, the employer could benefit from a more engaged and productive employee.

References

https://www.ey.com/en_gl/news/2021/05/more-than-half-of-employees-globally-would-quit-their-jobs-if-not-provided-post-pandemic-flexibility-ey-survey-finds

https://www.gov.uk/government/consultations/making-flexible-working-the-default

https://www.gov.uk/government/publications/good-work-plan

https://www.acas.org.uk/checking-your-employment-rights

https://www.cipd.co.uk/about/media/press/010221flexible-working-day-one-right

https://eprlaw.co.uk/contact/

https://www.gov.uk/flexible-working

https://www.citizensadvice.org.uk/work/rights-at-work/flexible-working/flexible-working-what-is-it/

https://www.cipd.co.uk/Images/megatrends-report-flexible-working-1_tcm18-52769.pdf

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