Flexible Working was first introduced in 2003, it allowed parents and carers to request flexible working to hours etc. In 2014, this changed to allow all workers a right to flexible working…so long as they had been continuously employed for 26 weeks.
In the face of Covid-19, flexible working became more prevalent, we all remember the advice, ‘work from home where possible’. Post Covid-19, the world has returned to normal (in some shape or form), however, there has been a greater push from employee’s to work more flexibly and is said to be creating the most conflict between staff and businesses. There have been 190 employment tribunal cases relating to flexible working in the past year, which is a slight increase on the previous year.
You, as employers, are likely now more than ever to receive flexible working requests, whether that be to reduce hours, change working days or even request to work from home permanently, we appreciate how important it is for you to know exactly what you should/shouldn’t be doing. In this article we have put together a quick guide to help you navigate flexible working requests.
- Is Flexible Working a day one right?
As of December 2022, Flexible Working is not a day one right unless your Flexible Working Policy states it is. Legally staff can only request flexible working if they have been employed continuously for 26 weeks, if they have not, you do not have to consider such a request until then.
It is important to note that the government have recently undertaken a consultation called ‘Making flexible working the default’, the consultation recognised that flexible working is different for every employer and employee. As a result of the consultation the Employment Relations (Flexible Working) Bill is making its way through Parliament, if this Bill it passed, it will provide employees with a day one right to make a flexible working request. When this Bill will come into force is currently unknown.
- Can an employee make more than one flexible working request?
At present, employees can only make one flexible working request in any 12-month period. This means that if a request is accepted on the 12 December 2022, they will not be able to make another request until 12 December 2023.
As set out above, the Bill currently making its way through Parliament, looks to amend this and allow employees to make two flexible working requests in any 12-month period. Again, when this Bill will come into force is unknown.
- How long should it take to deal with an employee’s flexible working request?
In accordance with current legislation, employers must respond to requests for flexible working (including the Appeal process) within 3 months. It is worth noting that it has been proposed that this be reduced to 2 months in the new bill.
- Can I reject a flexible working request?
An employer cannot just reject a flexible working request because they do not wish to agree to it, employers should be careful with the way in which they handle each and every flexible working request, you should:
- Ensure requests are handled fairly.
- You do not discriminate against employees.
- You follow either your Flexible Working Policy, or the ACAS Code of Practice on Flexible Working Requests.
If you are unsure if their request is possible, you should meet with the employee to discuss their request. During this meeting you may discover that the request is possible and can be accommodated.
If the request is not possible, you may be able to reject the request but only where there is a valid business reason to reject the request. By law, you can only reject the request if:
- It will cost too much;
- You cannot reorganise the work among other staff;
- You cannot recruit more staff;
- There will be a negative effect on quality;
- There will be a negative effect on the business’ ability to meet customer demand;
- There will be a negative effect on performance;
- There is not enough work for you to do when you have requested to work; or
- There are planned changes to the business.
If the reason to reject the request does not fall under one of these reasons, it will not be considered a valid business reason and you will be expected to accept the request.
If you have received a flexible working request, you should seek advice.
- What should I do if I am happy to agree to a flexible working request?
If you intend on agreeing to a request that has been made, you will need to put this in writing by way of a change of terms letter, depending on the request you may also need to provide the employee with a new contract of employment.
If you require any advice or guidance on how to draft a change of terms letter, you should seek advice.
- My employee is demanding they work from home what should I do?
This has become an increasingly common scenario for many employees, and we are here to assist you as best as we can in these scenarios, unfortunately it will not always be possible to accommodate staff requests such as working from home. For example, if your business is a hotel, it will be impossible to allow a housekeeper to work from home.
The first thing to do, where a staff member is looking to make a request is to review your Flexible Working Policy and inform the employee that they should make a request in accordance with this policy.
If you do not have a Flexible Working Policy in place, we would advise that you get one drafted as soon as possible. It is a legal right, and helpful to have it in writing so that both you and your employees understand the process.
Be careful, ensure that you follow the policy and do not allow leeway for certain staff members. If you allow one member of staff without 26 weeks’ continuous service to make a flexible working request, it can then be argued that it is your custom and practice to let all staff regardless of service to make a flexible working request. Alternatively, it could give rise to potential discrimination issues.
You should also consider if an employee is disabled and making a flexible working request, should this be dealt with by way of reasonable adjustments instead?
There are many different points to consider with flexible working requests and therefore, we advise that you seek advice before making any decision as to accepting or rejecting such a request.
- Are there any other upcoming changes?
The most anticipated change will be the Employment Relations (Flexible Working) Bill which has been introduced and will be making its way through Parliament. If passed it will bring into force the following:
- An employee will be able to make a flexible working request from day one.
- Employers will be required to consult with employees, as a way to explore alternative options before rejecting a flexible working request.
- Allow employees to make two flexible working requests in any 12-month period.
- Require employers to respond to requests within 2 months.
- Remove the requirement for employees to set out how the effects of their flexible working request might be dealt with by their employer.
The government have stated that the reason for this Bill is to provide more flexibility to employees, and that where there are happier employees it will make for a more productive businesses.
However, it will come as no surprise that there has already been backlash and resistance toward this Bill. The main reason being that it will cause real issues for small businesses if this is allowed.
Whether the Bill will be passed is uncertain, however, it does appear to have the support of Parliament, so may be passed sooner rather than later.
We will ensure to update you on the future of this Bill and its implementation.
In the meantime, if you have any queries please contact us on [email protected]