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Flexible working has taken many shapes, evolving in line with societal changes – especially after the COVID-19 pandemic. Although it has always been available, employees faced various restrictions when submitting requests.
These days, flexible working practices are normal. There are more considerations and discussions surrounding having a fair and flexible working policy that doesn’t impact a business’s productivity, but also enables an employee to balance childcare and family life, as well as achieve a better work-life balance.
Although, for the employee, flexibility can have a positive impact on their lives, it can be a daunting prospect for an employer, who may worry about quality control, productivity, and generally keeping track of things.
If done right, flexible working can suit both the employee and employer. In this blog, I discuss what flexible working is, recent legislative changes, how to respond to a request following regulations, and what happens when things go wrong.
Are you struggling with the implementation of flexible working as an employer? You can book a consultation with me to discuss your case and steps going forward by calling 020 3007 5500, or submitting a contact form.
What is flexible working?
Flexible working is a working arrangement adjusted to suit the needs of the employee.
There are various ways flexible working can take place, including:
- Hybrid working – a combination of remote and onsite work.
- Remote working – working from a location other than the typical workplace.
- Job sharing – split hours for one job to accommodate part-time workers.
- Compressed hours – the same number of hours but distributed differently e.g. 4 day week.
- Flexi time – the employee can choose their start and finish times around a set of core hours.
- Staggered hours – tailored start, end, and break times.
- Phased retirement – a change of contracted hours to help with a transition into retirement.
Employees may request other types or a mixture of arrangements.
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Is flexible working an optional benefit or a legal requirement?
Employees now have a legal right to apply for flexible working arrangements from the first day of their employment. This is known as making a statutory application. It is not their legal right to have an application accepted, only to submit an application.
Employees have always been able to make flexible working requests, but there were updates to the legislation on 6th April 2024, which we outline in this blog.
Although flexible working requests are a legal right, some similar work arrangements are widely thought of as a benefit. One example is a company offering work from home days as standard.
Flexible working requests can only be made by employees. Those who are workers or self-employed do not have a legal right to make a flexible working request. It’s important to understand different employment statuses when considering employment rights.
Do flexible working requests have to be formal?
If your employee chooses a formal, ‘statutory’ working request, they must specify this and submit their request in writing. This must include the date, when they want the changes to start, and what change they want in their work pattern.
Informal flexible working requests are also an option. This is where there is an agreement between the employer and employee, usually through an open discussion.
What were the previous flexible working requirements?
Previously, the application requirements for flexible working requests were:
- The employee must have worked at the company for at least 26 weeks before submitting a request.
- Requests had to include how their flexible working would affect the business and why the employer should accept it.
- The employer had 3 months to respond to a request.
- Employees could submit 1 request per 12-month period.
These rules are no longer the case as of 6th April 2024.
What are the changes?
The updates to the flexible working regulations include:
- Employees can request flexible working from their first day at the job.
- 2 requests can be made in a 12-month period.
- Employees don’t need to provide information about how their request may or may not affect the business.
- Employers must make decisions within 2 months.
- If the employer doesn’t accept the request, they must book a meeting to discuss the reason before rejection.
- Rejection is only acceptable if the flexible working will have a detrimental effect on the business in accordance with regulations.
Employers can deny requests and there is no longer a mandatory appeal process. Any appeal process is at the company’s discretion, but it is good practice to have one in place and is part of implementing reasonable procedures.
What are some potential reasons for flexible working requests
An employee doesn’t have to give a reason for wanting to change their work patterns. But it could be in both your best interests to have a discussion around this.
It is common for people to change their work hours due to parental or caregiving responsibilities, in which case denying their request could class as discriminatory.
Are there any acceptable or reasonable grounds to decline a request?
You can only deny someone’s flexible working requests for genuine business reasons. There are 9 legal grounds to refuse an application for flexible working, which are:
- Their new hours would incur extra and damaging costs to the business
- No one else can fulfil the work affected by the changes
- Recruitment limitations when making up for the change
- Overall concerns about quality of work
- Concerns surrounding performance
- Problems meeting business demand
- The new hours don’t have enough demand to fulfil
- The business is already planning changes that affect the request
- Any additional reasons as defined by the Secretary of State
If you want to refuse an application, you must book a meeting with the employee to discuss their request before you deny it and provide them with reasons why.
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What are the positives and negatives of flexible working?
Flexible working arrangements can be a win-win for both employers and employees, but there are also some potential drawbacks to consider.
Positives of flexible working
- Better work-life balance.
- Increased productivity.
- Improved well-being.
- Greater job satisfaction, leading to increased staff retention.
- Reduced costs for both the employer and employee, e.g. less office space to pay for and less travel costs.
- A sense of trust and boosted morale.
- Fewer sick days used.
- A more diverse and inclusive workforce.
Negatives of flexible working
- Feelings of isolation, especially for remote workers and those who won’t interact as much with colleagues.
- Blurred boundaries between home life and work life.
- Changes to work hours may cause worries about potential progression routes.
- Adaptations to support different types of working can take time and incur costs.
- Communication challenges when working different hours and places.
- Security issues.
- Difficulties with maintaining company culture and collaboration.
- Prejudice from colleagues who believe the flexible worker is not working as hard.
As with anything, a well-thought-out plan, having a conversation and agreeing on a compromise (if appropriate), can help to overcome these hurdles.
How can employers implement an effective and legal flexible working process?
It’s important to act reasonably and legally when dealing with statutory requests for flexible working. You must also act fairly during informal requests.
To act lawfully:
- Only deny requests if you have a genuine business reason according to legal guidelines, and only if you have discussed with the employee prior.
- Don’t dismiss or try to dismiss your employees for making requests.
- Treat the requester the same as before they submitted their application and ensure they don’t experience any unfair treatment or discrimination.
- Make official changes to contracts within 28 days of acceptance.
It is good practice to apply the above points when handling informal requests and can help prevent future legal battles with disgruntled employees.
Employees cannot just complain to the tribunal for the denial of their request. They can only complain about unreasonable treatment, refusal of request due to incorrect facts, or wrongfully treating an application as withdrawn.
What could happen if a flexible working request is not handled well?
Employees can take their employer to the tribunal if their request wasn’t treated reasonably. This is a time-consuming and stressful process that employers should try to avoid.
Having an open dialogue with employees about their requests, and any reasons for denial, is vital for staff retention and overall job satisfaction. If you can’t fulfil a request, you should explore alternative options, and reach a compromise.
There are many things you should do in terms of best practice, such as ensuring you have a fair process to deal with flexible working requests and considering the Acas Code of Practice on flexible working requests.
A failure to follow the Acas Code will not make an organisation liable to legal proceedings. Although, employment tribunals will take the Code into account when considering cases. So, with that in mind, it’s advisable that you follow guidelines as closely as possible.
As an employment law specialist, I have experience dealing with these types of issues and ensure I’m up to date with all policies and regulations. Seeking advice now could prevent potential cases down the line.
How can Britton and Time Solicitors help?
We know how stressful and time-consuming employment disputes can be. That’s why our initial consultations with our specialist employment solicitors offer you:
- Unlimited time to go through the details of your case and ask any questions
- An overview of your legal standpoint and your available options
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To arrange your initial consultation with one of our solicitors, simply call us on 020 3007 5500.
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