As we reported last December, the Government expressed broad commitment to an evolution of the current flexible working regime, which has been around for many years but is no longer seen as entirely fit for purpose. The lockdown experience highlighted for employers and employees, the positive benefits of hybrid or other alternative working arrangements. That generally positive experience has added to the momentum toward making it easier for employees to seek a permanent change to their working arrangements. 2022 saw the government embark on a consultation exercise entitled “making flexible working the default”, giving a pretty clear indication of the direction of travel.
To recap, the government committed to: -
- removing the 26-week qualifying period before employees can request flexible working, making it a day-one right.
- requiring employers to consult with their employees, as a means of exploring the available options, before rejecting a flexible working request
- allowing employees to make 2 flexible working requests in any 12-month period.
- requiring employers to respond to requests within 2 months, down from 3.
- removing the requirement for employees to set out how the effects of their flexible working request might be dealt with by their employer.
So where are we now?
Things have moved on quite a bit since last year and the original private members bill put forward by Labour MP Yasmin Qureshi has formed the basis of the Employment Relations (Flexible Working) Bill, now at its final reading stage and due to get Royal Assent. It’s brief and to the point, simply amending the existing provisions of the Employment Rights Act 1996 (S80F) to reflect most of the original changes committed to last year. If all goes to plan, we should see this coming into force fairly soon with secondary legislation to follow.
What does this mean for Employers?
Given the extent to which many employers have already evolved their own working practices since lockdown, the new changes may not make a huge difference, with many staff already working to a new arrangement that suits them and is consistent with the requirements of the business. However, for those who sought to bring teams back into offices and other workplaces for a substantial part of the working week (and had every right to do so given lockdown restrictions were only ever temporary), the changes could prompt a flurry of new applications to work differently. This may be the case particularly for staff who were resistant to return but perhaps not eligible at the time to make a flexible working request or disinclined to do so because of the more cumbersome process that had to be followed.
The publicity around the new flexible working arrangements and new guidance to follow will also inevitably raise renewed awareness of flexibility at work. Assuming the necessary secondary legislation is enacted this will also become a day one right as originally envisaged. As well as becoming a more streamlined process to apply, it also becomes tougher for an employer to simply turn down a request. They will need to engage with the employee more actively and try to overcome any perceived obstacles to the change proposed. In some ways this represents a real shift in the burden of coming up with a workable solution, away from the employee and on to the employer although one would hope employees will not become entirely passive in that aspect of the process.
To be clear, the original reasons an employer can rely on to turn down an application (detrimental impact on performance, customer service, quality, additional burden of costs and so on) will remain unchanged. But there will need to be a more active dialogue around this between the parties, before a final decision is made.
One other change that employers must now consider is updating their polices on flexible working once the legislation is finalised, so the new regime is properly reflected. It would also make sense for line managers and HR colleagues to organise some training around the changes so they are fully prepared for what may come.
Going forward, we are likely to see more requests to work flexibly once the new law comes fully into force. Many employers are already ahead of the curve now and make clear in job advertisements that while a role is offered on a particular basis, flexibility is welcomed. So even in the case of new starts, all employers will need to prepare themselves for greater flexibility being pretty much the norm.
To discuss the changes and your requirements around updated policies and training, contact a member of the employment team on 03330 430350.