Flexible working has become increasingly popular since the UK Government first announced employees’ right to request it in 2003. And it remains a key tool in an employer’s armoury for attracting and retaining employees, particularly given the seismic shift to home working for so many people during the pandemic. It also introduces some challenging questions around balancing organisational requirements against the needs, and desires, of the workforce.
Additionally, if handled poorly, there can be costly consequences – such as in the case of Ms A. Thompson v Scancrown Ltd, trading as Manors. Here, the employer refused a request to finish at 5pm (so Ms Thompson could collect her child from nursery which closed at 6pm), as well as a reduction to a four day working week. The Employment Tribunal ordered Manors to pay Ms Thompson £184,961.32 for the resulting indirect sex discrimination claim.
| What is flexible working?
Flexible working can encompass flexibility in location (from home, the office or the increasingly popular “work from anywhere”), working hours or pattern (ie flexitime, job sharing, or working compressed, annualised, or staggered hours).
| How flexible working looks now
The right to request flexible working currently applies to all employees who have at least 26 weeks of continuous employment. Only one request may be made in a 12-month period.
The employer has three months within which to decide whether to grant the request and has a limited range of valid business reasons upon which it can rely to refuse, including where:
- it will cost too much
- it is not possible to reorganise the work among other staff
- the employer 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’s not enough work for the employee to do when they’ve requested to work
- there are planned changes to the business, such as a reorganisation, and the request will not fit with these plans
| What are the proposed changes?
The headline change following the Government’s consultation is the proposal to make flexible working requests a ‘day-one right’. This means an employee will not need 26 weeks’ continuous employment to make a request.
Whilst the grounds for refusal won’t change, there will be a new obligation to consult with the employee and explore potential options before refusing to grant an application.
Other changes include:
- Enabling two flexible working requests to be made by an employee in any 12-month period (up from one)
- Requiring employers to respond to flexible requests within two months (down from three)
- Removing the need for employees to explain to their employers the effects of their flexible working request and how this might be dealt with by their employer.
| What might the changes mean?
Progressive employers will welcome the changes and see them as empowering individuals to have a greater say over when, where and how they work – delivering organisational benefits in attraction, retention and productivity. Other employers may wrestle with the implications of continued demand for remote or hybrid working which some say undermines culture and hampers collaboration.
It will be interesting to see how the change in the law (which as yet has no implementation date) will impact employment tribunal activity – in the year ending 30 September 2021 there was a record high of 193 cases, up from 127 in 2019-20 (a 52% increase) which may in part have been driven by employees resisting attempts by employers to force them back into the office.