Since March 2020, the majority of employers have had to consider flexible working arrangements in order to enable their business to continue to operate during the Coronavirus pandemic. Many employees are now approaching their employers with requests to continue with flexible working arrangements despite the fact that the majority of Coronavirus restrictions have ceased to apply. Various business associations, trade unions and charities are also urging employers to properly consider the benefits of flexible working.
In addition, last week the Government announced a consultation on its proposals to strengthen flexible working rights in the workplace titled “Making flexible working the default.” https://www.gov.uk/government/consultations/making-flexible-working-the-default. It closes on 1 December 2021.
As more employees are likely to be seeking flexible working arrangements than ever before, it is important that employers understand the Government’s proposals and how to prepare for expected changes to current rights.
Current Law
The right to request flexible working has been in existence since 2003. Currently, all employees with 26 weeks’ service have the right to ask their employer to change their location, hours and times of work. They can make one statutory request for flexible working each year. Employers are able to refuse the request, but the refusal must be based on one of eight business reasons set out in the legislation as follows:
a) extra costs that will be a burden on the business
b) the work cannot be reorganised among other staff
c) people cannot be recruited to do the work
d) flexible working will negatively affect quality
e) flexible working will negatively affect performance
f) the business’ ability to meet customer demand will be negatively affected
g) there’s a lack of work to do during the proposed working times
h) the business is planning structural changes
Employers must deal with requests in a reasonable manner and resolve the request (including any appeal) within 3 months. Where an employer fails to deal with a flexible working request in an appropriate manner, the employee can pursue claims in the employment tribunal for breach of the flexible working legislation. The maximum award of compensation is 8 weeks’ pay (currently capped at £544 per week). However, failing to deal with flexible working requests properly can also lead to claims for discrimination which can be much more complicated and expensive to deal with.
Proposals for reform
The Government’s proposals for reform do not make significant changes to the existing framework. It is not intended that there will be an automatic right to work flexibly and any new flexible arrangements will still be a matter of agreement between the employer and the employee. However, the Government makes it clear that they want to encourage genuine two-sided consideration of what flexible arrangements may be possible, moving away from the current focus of what is not possible.
The Government proposals include five key areas:
Making the right to request flexible working a “day one” right.
The consultation seeks views on whether the qualifying period should be removed, and what benefits this may deliver. Having a right to request flexible working from day one will bring many more employees within the scope of the legislation. The Government hopes that it would encourage employers to have conversations at an early stage, possibly even at recruitment, about opportunities for flexible working and give employees more confidence to ask for flexible working arrangements.
This may be particularly important for certain groups of employees, for example, those with caring responsibilities or medical needs who traditionally may find it difficult to find or move to new roles due to other commitments. Given current skills shortages, enabling more people to join the workforce may have wide reaching benefits.
Making changes, if necessary, to the eight business reasons for refusing a request to work flexibly.
The consultation seeks views on whether the grounds for refusing a request remain appropriate. The Government does not see that there is a need for a fundamental change to this list of reasons as it recognises that employers should be able to reject a request where there are genuine business reasons for doing so.
Requiring the employer to suggest alternatives to the arrangement suggested by the employee.
The consultation seeks views on whether employers should be required to show that they have considered alternative working arrangements when rejecting a statutory request for flexible working.
Whilst at present there is a need to consider requests “reasonably”, there is no specific obligation on the employer to suggest alternatives. This means that in many cases, the employer focuses on justifying why the working pattern suggested by the employee will not work, rather than having a constructive discussion about what could work. The Government hopes that approaching requests with a view to finding a resolution which works for all parties may help to deliver the culture change in the workplace that they are seeking and make flexible arrangements the norm rather than the exception.
Changing the administrative process underpinning the right to request flexible working.
The Government seeks views on whether the current rules that only one flexible working request can be made within 12 months places unnecessary barriers to accessing flexible working on those whose personal situation may have changed (such as newly disabled people, or new parents). Consideration will also be given to whether the current 3 month time frame for responding to requests is appropriate taking into account that some employees may have personal circumstances which necessitate a faster response.
Raising awareness of the existing right of employees to request a temporary flexible working arrangement
Whilst it is already possible for temporary arrangements to be agreed between the parties, the Government believes that this is under-utilised. The consultation seeks views on what would encourage employees to make such requests.
Other matters
The consultation sets out other steps the Government intends to take to help make flexible working the default, including inviting the ‘flexible working taskforce’ to consider the impact of the Coronavirus pandemic and to develop advice to support new ways of working. As part of a separate exercise, the Government intends to launch a call for evidence looking at the sorts of ‘extra’ flexibility people may need to help them live their lives in the best way they can – both at work and at home. It will explore the need for ‘ad hoc’ and informal flexibility and how this can best be supported.
Actions for employers
Whilst the Government’s proposals do not indicate that there will be significant changes to the way in which flexible working requests are currently made and managed, it is clear that the Government is seeking to achieve a change in workplace culture so that flexible arrangements are seen as the norm and not the exception. It is also clear that there is an expectation that employers will be looking to find working patterns that suit the employer and the employee rather than seeking to justify traditional arrangements.
Our experience is that many employees now expect their employer to consider flexible working, on the basis that the experience of the pandemic has shown that it can work. This means that employers may have no option but to change their approach to working arrangements if they want to recruit and retain the best candidates for their business.
Employers would be well advised to create or update flexible working policies and procedures, and ensure that managers know how to recognise and respond to a flexible working request, to ensure that all requests are dealt with appropriately. Failing to deal with requests properly can lead to claims under flexible working legislation and more costly discrimination claims, perhaps on the grounds of sex or disability where childcare or medical conditions are behind the request for flexible working.
Employers who are open to making more flexible working practices the “norm” for their business will also need to have regard to the practical and legal implications of such arrangements. Our recent article on Hybrid Working comments on some of the issues that employers will need to consider.
If you require any assistance with the issues discussed above, please contact the employment team on Employment – Taylor Walton