In July 2019, the government published the Good Work Plan: proposals for families setting out three separate consultations on improving employment rights for families. One of those consultations considered flexible working, and particularly, whether employers should have a duty to consider if a job can be done flexibly. The consultation closed in October 2019.
The government’s position was that it encouraged flexible working and it intended to consult on making it an employer’s default position. However, as with many things, the consultation was delayed due to the COVID-19 pandemic. The government has now launched a further consultation, Making flexible working the default, published on 23 September 2021.
What is the government consulting on?
The existing right to flexible working is available to employees with 26 weeks’ continuous service. It gives the right to request flexible working for any reason, albeit the employee can only make one request in any 12 month period. The statutory procedure is set down in the Employment Rights Act 1996 (ERA). It includes the requirement for the employer to formally respond in writing to the request within the decision period (three months). It also clarifies that the employer can only refuse a request for one or more of the eight grounds set out in the ERA.
The government considered consulting on a “day one” right to flexible working. This was, in fact, recommended by the government’s Flexible Working Taskforce (formed in February 2021), an advisory group made up of business associations, charities and trade unions. If introduced, this would have effectively removed an employer’s right to turn down a request.
However, this was not considered achievable by the government, considering the wide variety of business models and individual needs. The current system, where employers and employees have to discuss work requirements and individual needs and balance those, will therefore remain. The government says it is keen to encourage genuine flexibility though, suggesting that the discussion should focus on what may be possible, rather than what is not.
The consultation, therefore, sets out five proposals for reshaping the existing framework:
- the right to request flexible working as a “day one” right;
- considering changes to the eight business reasons for refusing a request;
- requiring employers to suggest alternatives;
- changing the administrative process (including considering whether the three month decision period is still appropriate and if employees should be able to make more than one request in 12 months); and
- raising awareness of the right to request temporary flexible working arrangements.
The consultation closes on 1 December 2021. Should you wish to submit a response and give your views you can do that online: https://beisgovuk.citizenspace.com/lm/flexible-working/ or by emailing email@example.com.
What happens to flexible working in the meantime?
Whilst the consultation does not necessarily indicate any drastic change to the system, it will still remain open for employers to refuse any flexible working request, and there are some important changes up for discussion. For example, a “day one” right to make the request and allowing employees to make more than one request in a 12 month period (to account for changing circumstances) could have a significant effect. Until then, employees will continue to have and exercise their current rights under the ERA.
That said, a lot of employers are already embracing flexible working, going beyond current requirements. It could be said that now the “new abnormal” is actually those workplaces where employees are required to work five days a week in the office, even though that is not strictly necessary for them to perform their roles.
Certainly, there is no doubt that the COVID-19 pandemic has changed how many of us work and how we think about flexible working. Both employees and employers are recognising more readily the need for flexibility when balancing work and other commitments, such as childcare or family members who are unwell. Whilst some of the pandemic working patterns were only ever meant to be temporary, and indeed some could not be sustained on a permanent basis, there can be no doubt that our eyes have now been opened to the possibility of a new approach to flexible working.
Are you embracing the new approach to flexible working?
We all recognise that remote and flexible working doesn’t necessarily work for everyone; your shop floor staff cannot work from home and sometimes the factory lines run at certain times and require staff to be present on those shifts accordingly.
However, there are a number of provisions and practices that employers and employees can take advantage of. For example, many employers are using flexible working to give their employees a better work life balance, whilst achieving greater productivity in return when they are at work. Hybrid working has become the norm for many, recognising that home working can be beneficial but that a ‘sense of team’ comes from everyone sometimes being together, bringing together their ideas, knowledge and skills for each other’s benefit. Some have gone further, closing offices and working from home wholesale, to cut the unnecessary overheads.
Some employers are using remote working to allow them to recruit better quality candidates. Businesses in those locations, where it has been traditionally harder to recruit, can now say, you don’t need to work from here, you can work from your home office. Come and work for us anyway!
What should employers be doing now?
Whatever approach you choose, it’s important to put in place the right policies and procedures to manage flexible working, eg ensuring consistency when processing and dealing with applications, making sure that it suits the business as well as the employee, and confirming in writing clearly what the flexible working arrangements are and whether they are temporary or permanent. If they are temporary, remember to review and update accordingly.
If the arrangements include home working, consider a home working policy and remember that you still have a duty of care towards those employees. Make sure that you are carrying out appropriate assessments on their home work stations and ensure that they have all of the correct equipment. It’s also good practice to have regular meetings to check in with your remote employees as it’s important to consider their wellbeing.
Regardless of the outcome of the current consultation, it seems that flexible working is fast becoming the “new normal” in many sectors and something that more and more employers will want to embrace in order to attract and retain the best talent. The Employment Team at Shakespeare Martineau is here to guide you through any challenges and changes to your policies and procedures that this entails.