The future of flexible working in the hybrid era
30 September 2021
Currently, a flexible working request can be made by all employees but only once they have completed 26 consecutive weeks’ service and only one request may be made in any 12-month period. Requests must set out what changes the employee is seeking (days, hours etc), how it may impact the business and how that can be overcome. The employer must make a decision (normally after a meeting) within three months, or such longer period as the parties agree. Any rejection must be on one or more of the following eight statutory grounds:
- The burden of additional costs.
- Detrimental effect on ability to meet customer demand.
- Inability to reorganise work among existing staff.
- Inability to recruit additional staff.
- Detrimental impact on performance.
- Insufficiency of work during the periods the employee proposes to work.
- Detrimental effect on quality.
- Planned structural changes.
If an employer cannot accommodate the employee's request they are able, but not obliged, to suggest alternatives or to apply a trial period (to the original request or a variation thereof) to assess the full impact.
Employers are largely protected from any claims under the flexible working regime provided they have handled the request in a reasonable manner, followed due process and legitimately rely on one or more of the statutory grounds for refusing, although they should be mindful of discrimination claims that may also arise.
The government’s consultation sets out five key proposals for amending the existing statutory framework. These include:
- a ‘day one’ right to request flexible working by removing the current 26-week qualifying period;
- considering whether the eight existing business reasons for refusing a request remain valid;
- requiring employers to suggest alternatives if they intend to refuse a request;
- altering the administrative process underpinning the right to request flexible working, including allowing employees to make more than 1 request per year and changing the time limits for responding to a request; and
- how the right to request a temporary flexible arrangement could be better utilised.
Previous plans to require employers to publish their flexible working policies and to state whether flexible working is available when advertising for a role have been dropped.
How far the government will eventually go in amending the current regime we will have to wait and see. As always, it is a balancing act between the legitimate business needs of employers and promoting a more flexible workforce to the benefit of individuals. Taking just some obvious issues:
- Employers may not be thankful if, having carefully considered the scope and nature of a specific role and spent (sometimes substantial) costs in recruiting for it, they are met with a flexible working request on day one. Employers should certainly give careful thought to the new regime, if the day one right is introduced, to try and prepare for and pre-empt requests being made immediately or close to the start (although each request needs to be determined on its own facts). Perhaps the consultation might suggest that applicants make a flexible working request at the point of applying for a role and if they don’t, they must then wait a minimum period of time (possibly the current 26 weeks). There are some obvious difficulties with job application requests as the individual will not yet understand the make-up of the business upon which, under the current rules, to base their application. Indeed, employers might prefer to deal with just the single successful candidate who makes a request on day one rather than the potential headache of dealing fairly with multiple job applications, some who make a request for flexible working and some who don’t.
- The inability to recruit additional staff – depending on the type of business – may be one of the current statutory grounds for refusal which no longer carries the weight it once did. One of the key benefits of a more flexible workplace that many employers are already seeking to make use of is that home-working (whether exclusively or as part of hybrid arrangements) potentially opens up a much larger pool of potential candidates in what is currently a very difficult environment to recruit.
- If the proposals are introduced, they will place a greater administrative burden on employers who are likely to have to deal with more requests in a shorter timeframe, with an obligation to suggest alternatives to the employee.
It is important to remember that hybrid working policies put in place by employers across their workforce and individual flexible working requests are two entirely separate issues. Whilst there may be some advantages to waiting for the outcome of the consultation before committing to a hybrid policy for your workforce, new legislation inevitably takes time and there are now very real expectations and benefits to be gained from consulting with your staff and putting in place the appropriate policy (subject always to the continued right to make an individual flexible working request). It will be interesting to see to what extent the process of having already moved to a hybrid working policy may, itself, provide grounds for refusing a flexible working request in the future.