How are flexible working rights changing?

  • Employment Law
James Potts - Legal Services Director at Peninsula

James Potts, Legal Services Director

(Last updated )

In a bid to make flexible working the ‘default’, the government is setting new rules for both employers and employees. This involves giving millions of employees a day one right to request flexible working, allowing them to have greater opportunities when it comes to when, where, and how they work.

Whilst this change may provide greater flexibility for your staff, it means you may need to change your current processes to avoid legal risk.

So, what does this mean for your business? Here’s everything you need to know…

What proposed changes are happening?

The government has announced the following updates for flexible working rights:

  • Employees will be able to request flexible working from day one.
  • You have to make a decision about a flexible working request within two months.
  • You cannot reject a flexible working request without first consulting your employee and considering an alternative arrangement.
  • Employees will be able to make two flexible working requests in a 12-month period.
  • Employees will no longer have an obligation to explain how their flexible working arrangements will affect you and how to deal with these effects.

When are the proposed changes happening?

As of now, there is no specific date set for the changes.

Currently, a Private Member’s Bill is passing through Parliament, and this will cover most of the proposed changes happening.

How should I discuss a flexible working request with my employee?

If your employee asks for flexible working, you should arrange a time to discuss their request. You should do this privately and face to face. If that’s not possible, you could do it over the phone.

You should consider the request objectively and fairly. In your meeting, it’s important to address:

  • the changes your employee is asking for and why they want them
  • any concerns you may have with accepting the request
  • ways to combat any difficulties that could happen
  • alternative options if the request isn’t possible

Your employee might ask if they can bring someone else to the meeting. This might be a colleague or a trade union representative. Whilst this isn’t a legal right, it’s good practice to allow them to do so. It may also help your employee feel more comfortable and show how fair your process is.

If you’re not sure whether the request would work, you could agree to trial it temporarily or you’ll need to consider an alternative option.

What alternative options can I provide?

Say your employee has asked if they can adjust their hours every day and you cannot accept that request. Instead, you could suggest adjusting their hours on some days, instead of all week.

Or, if you cannot approve your employee working from home full-time, you could suggest:

  • staggered hours – starting earlier/later and finishing earlier/later
  • flexi-time – allowing staff to finish work early and make up the time at a later date
  • hybrid working – working some days in the workplace and some days at home

And if you don’t think any flexible options would work, you could discuss ways to make your employee feel more comfortable in the workplace. You could also consider increasing pay or giving bonuses as an incentive to keep them happy.

Can I refuse a request?

You can still refuse a flexible working request, but by law, this can only be for one of the following eight reasons:

  • It costs too much

Flexible working might become too expensive and you would have to prove how it would create a burden of additional costs.

  • It’s not possible to reorganise the employee’s work with other staff

An employee with specific skills might not be able to reorganise their work with other staff. This could mean they struggle to meet deadlines or underdeliver if they wanted to work reduced hours.

  • You’re not able to recruit more staff

If staff want to work compressed hours and fewer days a week, it may not be possible to hire more staff to cover them.

  • The quality of work will suffer

If an employee asks to work fewer hours, they may have less time than they need to deliver their best work, which could end up having a negative impact on the overall quality.

  • Performance will suffer

If an employee asks to work from home, they might not have access to the specialist equipment they need, which may end up affecting how they perform.

  • The business will struggle to meet customer demand

If staff aren’t available at certain times, it could mean the business loses sales or fails to keep up with demand.

  • Structural changes might make it difficult or impossible to work flexibly

If you want to change the way the business operates, like setting up new technology, flexible working might not fit in with these changes.

  • There’s not enough work to do

Your employee might want to adjust their hours to a time when there won’t be enough work for them to do, like during a quiet period in a call centre for example.

What should I do after the meeting?

Currently, you have three months to make a decision once your employee submits a flexible working request. When the update comes into effect, you’ll only have two.

So, it’s good to already have a process in place to save you from wasting time or acting inconsistently. If you miss the deadline or fail to follow a full and fair procedure, you could be at risk of a tribunal case.

If you’re happy to accept your employee’s request, it’s likely you’ll need to update their contract to reflect their new working pattern. And if you’re going to have a trial, decide how long it should be and a date to review the situation.

How do I handle multiple requests from staff?

Say two employees make requests to work from home at the same time. Depending on your business needs, you might only be able to allow one of them to work remotely as you need someone on site. In this case, you could:

  • talk to the employees and see if you can reach a compromise
  • approve requests on a first-come-first serve basis

You may want to consider each request in the order you get them.

It can make it easier to manage requests when you outline your rules in a policy. That way your workers already know your process and business needs, so they can’t accuse you of acting unfairly.

What steps will I have to take?

Even though the new law isn’t yet in effect, you’ll still need to prepare to update your existing flexible working policies and practices.

Once employees have a day one right to make a request, you’ll need to prepare a strategy before you hire. It’s good to have a policy set up to deal with flexible working requests. This helps make sure you follow a consistent, fair process that treats all staff the same way. It also means your staff understand your process for making a request.

You may also want to communicate to your staff how flexible working rights are changing and what this will mean for working arrangements.

As a Peninsula client, your HR experts are on hand to review your documentation and update it to keep you legally compliant. And if you need any advice, don’t hesitate to get in touch.

If you’re not yet a client and want to make sure your business is safe from risk, call 0800 028 2420 for a free consultation today.

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