What is Flexible Working?
In our article today, we take a look at what Flexible Working is, the variations of it, how to manage the process, accept applications, reject (and reasons for doing so), and the appeal process.
We also cover the important plans for reforms to flexible working.
What is the current legislation surrounding Flexible Working?
Since way back in 2003 which is when the legislation came into force providing parents (and certain other carers) with the right to request a flexible working arrangement, covering working hours/pattern and also work location. It was then updated in 2014, with the provision of the right to request a flexible working arrangement being extended to all Employees with 26 weeks of continuous service.
In order to request flexible working the individual has to show how it can work for the business, as a business owner you can reasonably refuse the request, uphold the request or partially uphold the request.
There are 8 reasons you can legitimately refuse a request, as an Employer you should act within a reasonable timeframe, that being 3 months, and offer the right to appeal any decision.
How does Flexible Working work in practice?
In its simplest terms, flexible working is just really a way of working that meets your Employee’s needs. It can be any type of working pattern that differs from the conventional type, or that differs from the Employee’s existing one.
Here are some typical examples of flexible working arrangements, these are commonplace but are not limited to:
- moving from full-time to part-time work, reducing hours, days or both
- flexible start and finish times
- moving from full-time to part-time work
- adapting work hours to suit school hours or caring arrangements
- working remotely for part or all of your working time
Flexible working allows Employees to adapt their work schedule to suit their personal needs and day-to-day life; it can benefit you as the Employer too, as the Employee can work their time around the needs of the business. Additionally, flexibility in the workplace is a highly desired quality, as an Employee, on a personal level it can show more understanding.
If you, as the Employer, intend to reject an Employee’s flexible working request, you must discuss alternative forms of flexible working available, you should make application forms available. Hopefully, you and the Employee will be able to come to an arrangement that suits both parties involved.
You should have a policy and process in place that sets the framework and clear expectations for all to understand and follow.
Can a request be refused and if so, why?
A request can be refused by you the Employer, there are the 8 reasons that as an Employer you can refuse a request for flexible working, these are:
- planned structural changes
- the burden of additional costs
- quality or standards will suffer
- you will not be able to recruit additional Employees
- performance will suffer
- will not be able to reorganise work among existing Employees
- will struggle to meet customer demand
- lack of work during the periods you propose to work
As part of the application process each request should be considered on a case-by-case basis, therefore, alleviating any potential indirect discrimination claims, being reliant solely upon the 8 reasons would not be prudent and as an Employer you would need to factor this in.
Under the proposed reforms there are no proposals to change the list which are currently in place
Are there any Risks if I can’t or Don’t Offer Flexible Working as an Employer?
There have been recent cases in Employment Tribunals (ET) that highlighted specific risks of indirect sex discrimination relating to flexible working requests. It is widely recognised by Employment Tribunals that women predominantly take on childcare responsibilities more than men in relationships, this can lead to women being disadvantaged by inflexible working practices and place them at risk of discrimination.
We refer here to our recent latest news in which we highlighted the Thompson vs Scancrown Ltd T/A Manors, case, interestingly in just one of the claims brought to the tribunal was that she experienced ‘Indirect Sex Discrimination’ The tribunal did award to Mrs. Thompson, and this is related to the flexible working request above. She provided evidence she was unfairly burdened with childcare, providing a survey by Direct Line Insurance, saying that mothers take the burden of 64% of childcare labour, taken in 2018. Given the survey’s methodology seemed sound, and it was relatively recent the tribunal was happy to accept it as evidence that, compared to the male Employees at Manors, the refusal of flexible working was an undue burden on the women and specifically mothers.
In view of recent successful wins at Employment Tribunals, it will continue to be an interesting time for Employers, especially ones that do not openly embrace flexible working currently, or in the future. There will undoubtedly be demand for flexibility, we know only too well this has increased and even more so since the pandemic and there can be benefits for both parties when executed in the right way.
What is due to change in legislation?
So, what is on the cards to change? In a nutshell, the change will mean that flexible working will become more accessible to more individuals, the proposals will mean that flexible working includes a day-one right for individuals to make a request, and it also includes a review of the current reasonable denials of the request, in addition, Employers are also encouraged to consider alternatives if a flexible working request cannot be accommodated.
The government has announced that it will make changes to the right to request flexible working. Rather than there being a requirement of 26 weeks service it will become your Employees right from the 1st day of employment, your Employees will also be able to make up to two requests each year (as opposed to one as it currently is) as an Employer you must deal with the application (and any appeal) within two months (as opposed to 3 months as it currently is).
As an Employer, you will still be able to turn down requests if you have a business reason for doing so on the same grounds as currently exist, worth noting here as an Employer you are required to consult with Employees prior to rejecting a flexible working request.
As an Employer, you will need to update your policy and procedure framework to reflect any of the amendments.
Here are the key points that you as an Employer, need to understand about the proposed changes to flexible working? The key points to note are:
- Flexible working will become a day one right, meaning your Employees will no longer have to have been employed for 26 weeks to make a flexible working request
- Employees will be able to make two flexible working requests in any one 12-month period
- Employers must respond to the flexible working request within two months, previously three months
- A requirement for you as an Employer to consult with the Employee, to explore available options, before rejecting a flexible working request
- Removing the requirement for Employees to set out how the effects of their F/W request might be dealt with by you
It is worth noting that flexible working is a request by your Employee and should be considered in that manner, rather than a right to flexible working.
When will the changes come into force?
The majority of the changes proposed will be brought into force by the Employment Relations (Flexible Working) Bill which is currently in Parliament, if passed it will become an Act, and we will have new laws.
The only exception to that is the change to make a flexible working request a day one right, this change will be introduced via “secondary legislation”, a quicker process, so likely to come into effect sooner.
What do you think, we would love to know
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You may (or may not) recall on 5 December 2022, the government published its response to the Flexible Working laws consultation, read more here, as we are now into 2023 we wanted to remind you of what is in store, how this will impact you as an Employer, what flexible working is, and how you can manage it in your workplace.
You may have read recently in the press, about the recent consultation which contains proposals to reform flexible working regulations (The Flexible Working Regulations 2014). The publication also covers the wider work being undertaken by the government to encourage and support flexible working, it also responds to relevant proposals from the Good Work Plan: Proposals to support families consultation which launched in July 2019.
Here to Help
HR and You’s handbooks and policies are fully in line with current legislation in regard to direct and indirect discrimination – and should you find yourself dealing with a flexible working request, we would be more than happy to help advise and guide you towards the ideal solution for you, your Employee, and your Business.
We are here to provide full advice, support, and guidance. We can advise in any HR or Employment Law matter: you can contact a member of our team on 0333 006 9489 or [email protected]
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