The Flexible Working Bill achieved Royal Assent last summer. While the legislation has now passed in Parliament, the law has not yet changed. Until it does (likely spring 2024) it is still discretionary for employers to offer the right to request flexible working from day one of employment.
The new measures
The term ‘flexible working’ is broad and can relate to working hours, working patterns or flexibility over where someone is working, be that from home or a satellite office.
When the legislation comes into force, the new measures in the Act will include:
- New requirements for employers to consult with the employee before rejecting their flexible working request.
- Permission to make two statutory requests within any 12-month period (rather than the current one request).
- Reduced waiting times for decisions to be made (within which an employer administers the statutory request) from three months to two months.
- The removal of existing requirements that the employee must explain what effect, if any, the change applied for would have on the employer and how that effect may be dealt with.
Alongside the Act, the UK Government announced that workers will have the right to request flexible working from day one of a new job.
Achieving the right balance
For many employees the new measures will deliver an optimum work life balance, but what if the flexible request does not work for both parties?
During the height of the COVID-19 pandemic around 37% of working adults worked from home in 2020. Since then some organisations struggled to achieve the right balance of working style. Some claim working from home is unproductive and have ordered a return to the workplace.
Across the public sector, we have seen increased requests to return to office-based working, with senior managers leading the way, reportedly spending more than 60% of their working week in the office. Despite this, a survey conducted by the PCS Union, representing civil servants, found that 40% of its members are now considering leaving the sector in response to the new expectation to return to the office.
In contrast, others have closed offices, reduced workspace capacity and increased flexible, hybrid and home working arrangements. The decision to do this can largely depend on the nature of the work being delivered and so a one-size-fits-all model is unlikely to work.
The emerging risks
At the heart of the new legislation is the encouragement for engagement between employer and employee about flexible working. The desire is to move away from delivering a flat refusal without suitable and sufficient consideration of the proposal presented.
The Act potentially brings an element of exposure for employers but also a driving force to formalise the working styles that have been loosely adopted.
Organisations will need to ensure managers are suitably trained, both in how they respond to flexible working requests and on how to manage a workforce with diverse working styles and patterns.
Any decline of a flexible working request potentially exposes the organisation to challenge if due process is not followed correctly and the request is not considered fairly. Employers will have to explain why a request has been denied, whereas previously they could be refused at the outset with no specific reasoning.
The employer could also face a claim for indirect discrimination by non-parent and carer employees for example, if it consistently gave more weight to requests from parents.
It is therefore vital the organisation sets out a clear decision tree and parameters for managers to follow to ensure each request is treated fairly.
Risk control
Without the full detail of what will be required from the Act, organisations can only undertake early preparatory work based on the expectations of the potential impact of the new measures.
Steps that could be taken in advance include:
- Review existing HR and recruitment policies and procedures. Identify what changes are likely to be required and the impact on process and training needs for managers, as well as awareness raising steps to be taken for employees.
- Undertake an initial risk assessment involving a cross section of stakeholders within the organisation. This will help direct resource in readiness for spring 2024.
- Evaluate existing job roles to proactively identify positions that could benefit from flexible arrangements.
Embracing the Act will be more than just adherence to the regulations. It will mean fostering a workplace culture that prioritises employee wellbeing, efficiency and inclusivity.
Organisations should be mindful of the risks and have strategies to manage these effectively but will benefit from a wider talent pool and a more content and productive workforce.
