With a new Act of Parliament to change the current flexible working regime having been granted Royal Assent, has the traditional nine-to-five-day been confined to the history books and where does this leave employers trying to run a business?
During the pandemic we all had a taste of working from home and the benefits of working more flexibly. For some it was a godsend, for others it felt isolating. For some employers they noticed a rise in productivity, in others – not so much!
But the end of lockdowns did not result in everybody happily returning to the office. So, are our traditional working patterns a thing of the past?
One of the changes being introduced is to allow all employees to request flexible hours from day one. Although this issue is not included in the new Flexible Working Act, the government has announced this right alongside the legislation.
Prior to this change being introduced, employees still have to provide 26 weeks of continuous service to be able to formally request to change their work location, working hours or working pattern. But the Employment Relations (Flexible Working) Act 2023 does make other changes that may be seen as loosening up the requirements for employees and keeping the onus on employers to give a sound reason why they would turn down a request.
It is clear that giving staff more say over their working pattern can make for happier, more productive employees. Flexible working has been found to help employees balance their work and home life, especially supporting those who have commitments or responsibilities such as caring for children. This can be simply by gaining back time from the daily commute for family life or that gym class or hobby that you never have time for. In fact the government website states that millions of employees will “have a greater say over when, where, and how they work” and businesses are “set to benefit from higher productivity and staff retention as a result”.
Flexible working does not just mean a combination of working from home and in the office – it can mean employees working flexi hours, job sharing, compressed hours, or staggered hours.
So, what does this mean for an employer?
Employers are not obliged to agree to the requests but do have to discuss options before turning them down. Employees can now make two requests within a 12-month period – previously this was only one.
When a flexible working request is submitted, there must be consultation with the employee and although not covered in detail, the expectation is that alternative options will be explored as to how the request could be accommodated before rejecting it. For instance, if it would not be possible to change a person’s working hours on all their days, perhaps it could be accommodated on some of the days.
But these new measures only serve to re-enforce the expectations set in motion through the pandemic that flexible working is here to stay and may make it harder for employers to reject requests.
A flexible working request can be turned down if there are demonstrable grounds to do so such as having a detrimental impact on employee performance, or on the business’s ability to meet customer demand. But employers need to show these impacts and respond to a request within two months (previously three).
Crucially, employers must be consistent in how requests are handled. An employee may have a legitimate grievance if their request has been refused while someone else in a similar position has had theirs granted.
What would be the consequences of refusing a request?
Given the direction of travel over the last two to three years that brought us here, employers are now at increased risk of challenges whether through internal grievances or employment tribunals, if they fail to give careful consideration to flexible working requests, taking the new legislation changes into account. Employment contracts, staff handbooks and internal policies need to reflect the latest changes. It will also be important to ensure that people in management positions who may be responsible for considering flexible working requests are aware of their obligations.
Thrings’ Employment lawyers are experienced in dealing with business matters that affect the workforce and has acted for both employers and employees, from start-ups and SMEs all the way to multinational corporations, across a wide range of employment matters. To find out how they can help strengthen your polices, and solve your disputes, please get in contact.
