Call to all Employers: Prepare for Changes to Flexible Working
Potential changes to the flexible working regime that every employer should be aware of.
Since the Employment Rights Bill was introduced in October 2024, employers should have started to consider how the changes proposed by the Bill could impact their workforce.
One proposed change which may have flown under the radar is a further amendment to the current rules surrounding flexible working.
What is flexible working?
Flexible working incorporates various alternative working arrangements designed to suit an employee’s needs. An example of this is remote working which became increasingly popular following the COVID-19 pandemic.
Flexible working can also include a reduction in the number of hours an employee works, working times or patterns and the days on which an employee may work.
The current position
Since April 2024, employees have been able to make a flexible working request from their first day of employment as well as being able to make two requests a year. Employers are legally required to deal with that request in a reasonable manner which usually involves engaging and consulting with the employee as well as providing the outcome to the flexible working request within two months.
If an employer is unable to accommodate the flexible working request, it must be because of one of the 8 statutory grounds which are detailed in s.80G(b) Employment Rights Act 1996.
What could change?
Firstly, the government has proposed the introduction of a reasonability test for refusing a flexible working request. This change will mean that an objective standard is applied to employers which will inevitably require careful consideration prior to refusals.
The government has also proposed a requirement for employers to express the reason(s) for refusal of a flexible working request and explain why the refusal is reasonable in the circumstances.
Finally, the government proposes to clarify steps that employers must follow when consulting with employees prior to the refusal of a flexible working request.
How to prepare
Employers should plan ahead in the following ways:
Review current flexible working policies: Employers that have previously dealt with a refusal of a flexible working request should evaluate how the refusal was handled and reflect on whether more thought should have been put into the reason for the refusal.
Consider tech improvements: The proposed changes may mean that more time is spent dealing with flexible working requests, as such, employers may benefit from improvements to their HR systems or internal processes that could streamline the process from the initial request stage to the final decision.
Evaluate existing performance data: One of the main reasons an employer refuses a flexible working request is that they believe the request may have a detrimental impact on the employees’ performance. If the Bill is enacted as currently drafted, employers will have to clearly justify why they feel the employee’s performance will be negatively impacted. One way this can be ascertained is by relying on supporting data. Accordingly, employers should implement methods to easily assess Key Performance Indicators (KPI’s), paying close attention to performance results of employees who currently benefit from flexible working.
One last thing …
Any changes to the law tend to bring about concerns, particularly, changes that affect procedures which have already been defined and have become common practice. Considering this, employers should view the changes to the flexible working regime as an opportunity to improve their flexible working policies and reaffirm the importance they place on the employer-employee relationship.
If you require any assistance with the drafting of a flexible working policy or dealing with a flexible working request, please contact a member of the Employment Team at Glaisyers ETL.
