The Government is in the process of reforming the flexible working regime as part of its “commitment to build a strong, flexible labour market that supports participation and economic growth”.
Often employees are apprehensive about asking for flexible working, but it is important to remember that flexible working is a right which can be requested by an employee from an employer.
Flexible working will not suit all workplaces and suitable measures will differ from one workplace to the other depending on the sector, the size of the workforce and the specific needs of the business and the workforce. Many organisations have experienced the benefits of flexible working.
The flexible working legislation first came into effect in 2003 with limited rights for parents and carers.
The rights were widened in 2014 giving all employees with 26 weeks service the right to make a request for flexible working regardless of their caring responsibilities.
This could mean working part time, compressed hours, job-share, remote, hybrid working or a combination of many. Employees are only able to make one flexible working request in each 12-month period.
Under the current law, an employee must make a flexible working request in writing. The request should include:
the date of request;
the requested changes;
when they want the changes to start;
how employee or employer might deal with any effects the change could have on their work or organisation;
the date of any previous flexible working requests, if any;
if the request relates to something covered by discrimination law (Equality Act 2010), for example, to make a reasonable adjustment for a disability you have.
any benefits the change could have to their work or the business (for example, cost-saving or doing shift times that others prefer not to do); and
any benefits to their colleagues (for example, if someone else would like a job share too).
A draft of a flexible working request can be found on the ACAS Website here: Flexible working request letter template | Acas.
Where an employer refuses a request an employee can go to the employment tribunal if the employee considers that the employer has breached the statutory procedure or that the refusal amounts to discrimination.
The Law is Changing:
On 5th December 2022, the government announced that they are backing a bill (Employment Relations (Flexible Working)) Bill 2022-2023 to amend the flexible working requests procedure.
The Employment Relations (Flexible Working) Bill 2022-2023 is a Private Members Bill introduced on 15 June 2022 by Labour MP Yasmin Qureshi. The main changes are the eligibility criteria and the timescales for considering flexible working requests.
The secondary legislation gives all employees (instead of only employees with 26 weeks’ service) the right to request flexible working from their first day of employment (a Day 1 Right) eradicating the 26 weeks continuous service requirement. This will give millions of employees greater access to flexibility leading to happier and more productive workforces.
Employers are also now required to consult with employees to identify alternative options before rejecting a request. They must now respond to requests within 2 months instead of 3. Employees are able to make 2 requests in any 12-month period. As part of the request, employees are no longer required to set out how the effects of their flexible working might be dealt with by their employer. Employers are also required to consult with the employee before refusing an application.
Although this is a step forward, there is still much more that can be done to promote flexible working with the UK.
Benefits of Flexible Working:
The benefits of flexible working for employees are obvious. It allows employees to work around their personal commitments and family life, especially relevant if they have caring responsibilities. Encouraging work life balance facilitates in protecting employees’ physical and mental health. It enables employees to balance their work and home life.
Flexible working gives rise to direct and indirect business benefits too. Research carried out by CIPD shows that flexible working employees have a higher level of job satisfaction, commitment and productivity compared to those who do not work flexibly. In some case staff absences have been reduced as a result of flexible working.
A recent pilot carried out by the 4 Day Week Campaign of 61 organisations working 4 days per week (but paid for 5 days per week) showed a 65% reduction in sick leave, a 2% productivity increase and a 57% reduction in attrition of the work force. Further 92% of the companies who took part in the pilot said that they will continue with the 4 day working week.
Organisations that offer flexible working become more attractive to new recruits and improve their staff retention levels. By removing the restrictions on flexible working, workforces can attain a more diverse workforce which have proven to increase innovation and financial return.
Flexible working doesn’t always entail working part time or with reduced hours. An option for flexible working is hybrid working ie an amalgamation of office and remote working. Some companies have always practised hybrid working even prior to COVID-19. Hybrid working was adopted during lockdown and has now been adopted widely once lockdowns were lifted following COVID-19.
Due to technological advances, employees can work efficiently from home and some employers have implemented hot desking, saving businesses money on office space and rent. Initiating hybrid working ensures an effective set up in place if anyone cannot get into the office due to weather conditions or childcare issues, for example. Research has shown that some job candidates would prefer to apply to companies that offer hybrid working in order to save them money on commuting into the office and to allow more time at home for caring responsibility.
An employer is required by law to consider the request fairly. They must discuss the request with the employee, look at other options if request is not possible, and give the employee a decision within 3 months of the request. It is imperative that an employer only turns down a request if there is a valid reason based on facts; they cannot let personal opinion persuade them otherwise.
The Employment Rights Act 1996 outlines business reasons an employer may refuse a flexible working request. These include:
the burden of additional costs;
detrimental effect on ability to meet customer demand;
inability to re-organise work among existing staff;
inability to recruit additional staff;
detrimental impact on quality;
detrimental impact on performance;
insufficiency of work during the periods the employee proposes to work; and
planned structural changes.
The ACAS Code of Practice sets out the minimum legal requirements and good employment practices an employer should follow when dealing with this request. If a denied flexible working request gets taken to an employment tribunal, the judge will take into consideration if the employer has followed the Code.
It is best practice for all organisations to implement and distribute flexible working policies. Additionally, it may be beneficial for employers to book ACAS training for themselves and managers at the business.
When will the changes come into force?
The Bill continues to progress through Parliament. It had its third reading (Report stage) in the House of Commons on 24 February 2023 and its first reading in the House of Lords on 27 February 2023. The date of the second reading in the House of Lords is still to be announced. It is likely that the Bill will come into force in 2024.
Before the changes become law employers will need to update their flexible working policies to reflect the new law and to ensure that their staff who deal with flexible working requests are familiar with the new process and timelines.
How can Pure Business Law help?
Specialist Employment Solicitors
Pure Business Law are specialist Employment Solicitors based in Bedford and London and operating nationally. We act for employers and employees. If you need advice on a flexible working request or on identifying how flexible working could work for your business or on any of the issues that we have raised in this article, including reviewing your contracts of employment or a TUPE transfer of staff please call us on 01234 938089 or e-mail us at email@example.com and one of our Helpline team members will be in touch.
Please note: This article is for general information only and does not constitute legal or professional advice.