With employees due to be given the right to request flexible working from the moment they start a job, businesses need to start implementing fair and consistent policies and procedures.

Following a consultation by the Department for Business, Energy and Industrial Strategy (BEIS), the government plans to give employees greater access to flexibility over where, when and how they work.

Two decades have passed since the UK introduced the right to request flexible working. Over the years, the legislation has changed dramatically and the pandemic forced an increase in demand for more flexibility from employees.

What is flexible working?

Flexible working is a way of working that suits an employee’s needs, for example having flexible start and finish times, or working from home. It can also mean employees making use of job-sharing, flexitime, and working compressed, annualised, or staggered hours.

So what do the changes mean?

Under the new Employment Relations (Flexible Working) Bill, which was introduced by Labour MP Yasmin Qureshi, employees will be able to ask for flexible working from the first day at their new job instead of waiting 26 weeks. And whereas previously, employees were able to make a request once every 12 months, they will now have the right to make two in the same time period.

As a result of the new bill, employers will be required to consult with employees and discuss alternative options before rejecting their flexible working request. Currently, it is not clear whether this will be a statutory requirement or just soft guidance.

The new plans will require employers to respond to requests within two months, down from three (however it will still be possible for employers and employees to agree an extension to this). In addition, the procedure for requesting flexible working will be simplified by removing the requirement for employees to set out how the effects of their request might impact upon the employer. The Government suggests that employers should seek to engage with employees to jointly understand what the impact of the request might be.

The response also commits to developing guidance on how to raise awareness and understanding of how to make and administer temporary requests for flexible working; and to launching a call for evidence to better understand how informal flexible working operates in practice.

What does this mean for employers?

While it is not yet known when the legislation will be introduced, it is important employers start putting in place the right policies and procedures to manage flexible working – ensuring consistency when processing and dealing with applications – if they haven’t done so already.

Under the new legislation, employers can still refuse a flexible working request if at least one of the eight prescribed grounds apply: Planned structural changes; the burden of additional costs; a detrimental impact on quality, performance or ability to meet customer demands; the inability to recruit additional staff; a detrimental impact on performance; the inability to reorganise work among existing staff; a detrimental effect on ability to meet customer demand; and lack of work during the periods the employee proposes to work.

It is important to note the legal right is for an employee to make a request to their employer and have that request properly considered – but not to insist their employer makes the changes requested.

Ultimately, employers have businesses to run and it will be up to them to decide if the requested arrangements are viable. If an employer has reasonable grounds for rejection, it is possible to insist the job is performed as advertised, even when faced with an immediate request for flexible working.

However, employers should remember that flexibility in the workplace is a lifeline for some, rather than a perk, and has provided significant benefits in terms of wellbeing and work-life balance for younger families, single parents, carers, and lower earners, in particular.

Furthermore, providing flexible working, where viable, enables employees to feel included, which means they are likely to be more engaged. This sense of belonging breeds an atmosphere of trust, as well as loyalty, which fosters multiple benefits for the workplace. For example, attracting and retaining employees is a much easier task when businesses have a reputation for being flexible and forward-thinking.

With this in mind, employers should consider every request carefully, weighing up the benefits for the employee and the company against any potential adverse effects and ensuring that any decision is not discriminatory.

Employment

Contact: Matt McDonald  matt.mcdonald@shma.co.uk

Philip Pepper philip.petter@shma.co.uk