With employees due to be given the right to request flexible working from the moment they start a job, businesses need to start implementing fair and consistent policies and procedures.

Following a consultation by the Department for Business, Energy and Industrial Strategy (BEIS), the government plans to give employees greater access to flexibility over where, when and how they work.

Two decades have passed since the UK introduced the right to request flexible working. Over the years, the legislation has changed dramatically and the pandemic forced an increase in demand for more flexibility from employees.

 

What is flexible working?

Flexible working is a way of working that suits an employee’s needs, for example having flexible start and finish times, or working from home. It can also mean employees making use of job-sharing, flexitime, and working compressed, annualised, or staggered hours.

It has a variety of offerings including co-working spaces, serviced and managed offices and short-term, flexible lets.

Occupiers here also obtain the benefit of attending networking events and socialising with “like-minded” people at those offices. Flexible/co-working can be defined by the landowner, and it appears that the most popular offerings include having “membership perks” where occupiers obtain added benefits from being situated in a particular space. This could be the type of professionals utilising the space, offering educational know-how/access to educational materials, or discounts on the utilisation of conference space etc.

From a legal perspective, what is important when considering whether any of the flexible working initiatives may be suitable for you, is formalising the delivery of such an initiative. A key consideration is the legal documentation that will be required to ensure that limited rights are being granted to occupiers. Documentation could take the form of flexible contracts for services rather than a licence, tenancy at will or other short-term lease. You may also need to consider producing terms and conditions for an occupier becoming a “member” of the flexible working space. These terms and conditions could set out the basis of the contractual relationship, termination, obligations of the member and the rights and benefits they will receive.

It is therefore worth considering whether flexible/co-working is a prospect that could maximise the use of your buildings/space, as not only is there the opportunity for an additional income stream, but also to be home to an innovative social space.

Flexible working in schools

The guidance defines flexible working as “arrangements which allow employees to vary the amount, timing, or location of their work”. Flexible working, therefore, includes part-time working; job shares; phased retirement; staggered, compressed, annualised or other variable hours arrangements; time off in lieu; home or remote working; and/or the use of personal/family days.

The DfE has updated the school’s guidance to take into account the different types of flexible working requests that employees are now making, drawing on the latest evidence on flexible working, including the recent research “Exploring Flexible Working Practices in Schools”, as well as good practice examples from within the sector.

The schools sector has typically supported traditional flexible working requests for such arrangements as job shares, part time working and variable hours, often to support teaching staff who have dependents or are nearing retirement. Requests for flexible working in schools were traditionally made under the statutory procedure set out in the Employment Rights Act 1996 and were available to any employee that had been employed for at least 26 weeks, provided they had not made an application under the regime in the past 12 months.

However, following the coronavirus pandemic and the government’s instruction to work from home if you can, working practices in the UK have changed significantly leading to employees readdressing how and where they want to undertake their work. As a result, we’re now seeing an increase in requests for home working or variable/compressed hours from employees within the sector. Requests are now being made both under the statutory regime and in the form of informal discussions, for either permanent or temporary working arrangements. Both routes are considered within the guidance.

The key take home points of the guidance are:

  • Schools should consider embedding strategic, whole school approaches to flexible working within a flexible working policy, with contribution from all parties, including trade unions where appropriate.
  • Flexible working arrangements feed into an employer’s duty to protect the health, safety and wellbeing of its staff and should be considered as a means of minimising stress related illness.
  • Some flexible working arrangements may be more suitable for particular roles than others, but any member of school staff can make a flexible working request.
  • Flexible working requests can be made using the statutory procedure or the non-statutory procedure. Irrespective of the procedure used, the guidance encourages dialogue between the parties to consider the impact of the request and the available options.
  • Trial periods are encouraged to test out plausibility of flexible working arrangements for both the school, and the employee.
  • Schools have a duty to consider requests for flexible working fairly, in a timely manner and according to due process based on business need. The school makes the ultimate decision on whether or not to accept flexible working requests.
  • Flexible working arrangements should not be used to address excessive workloads.
  • Policies and decisions regarding flexible working should comply with the school’s obligations under the Equality Act 2010.

What do schools need to do?

The guidance acknowledges that there are already challenges to overcome with implementing flexible working arrangements in a school setting. However, the guidance seeks to encourage schools and its employees to work together to establish arrangements that work for both parties, while ensuring consistent high-quality provision for pupils.

The guidance does not pose an obligation on schools to grant all flexible working requests made, but they must be considered.

If the request has been made under the statutory procedure, schools must be mindful of their obligations under the legislation with regards to how and when they must respond. Failure to comply with the rules may result in liability for the school of up to eight weeks’ pay, and/or an order for reconsideration of the request being ordered by the Tribunal. Employees may also consider bringing claims for unlawful detriment and/or automatic unfair dismissal, each of which carry additional financial liabilities if successful.

If a school has received a flexible working request and requires guidance on how to respond, in light of the guidance, particularly where the request has been made under the statutory procedure, we have a team of experts ready to assist.

So what do the changes mean?

Under the new Employment Relations (Flexible Working) Bill, which was introduced by Labour MP Yasmin Qureshi, employees will be able to ask for flexible working from the first day at their new job instead of waiting 26 weeks. And whereas previously, employees were able to make a request once every 12 months, they will now have the right to make two in the same time period.

As a result of the new bill, employers will be required to consult with employees and discuss alternative options before rejecting their flexible working request. Currently, it is not clear whether this will be a statutory requirement or just soft guidance.

The new plans will require employers to respond to requests within two months, down from three (however it will still be possible for employers and employees to agree an extension to this). In addition, the procedure for requesting flexible working will be simplified by removing the requirement for employees to set out how the effects of their request might impact upon the employer. The Government suggests that employers should seek to engage with employees to jointly understand what the impact of the request might be.

The response also commits to developing guidance on how to raise awareness and understanding of how to make and administer temporary requests for flexible working; and to launching a call for evidence to better understand how informal flexible working operates in practice.

What does this mean for employers?

While it is not yet known when the legislation will be introduced, it is important employers start putting in place the right policies and procedures to manage flexible working – ensuring consistency when processing and dealing with applications – if they haven’t done so already.

Under the new legislation, employers can still refuse a flexible working request if at least one of the eight prescribed grounds apply: Planned structural changes; the burden of additional costs; a detrimental impact on quality, performance or ability to meet customer demands; the inability to recruit additional staff; a detrimental impact on performance; the inability to reorganise work among existing staff; a detrimental effect on ability to meet customer demand; and lack of work during the periods the employee proposes to work.

It is important to note the legal right is for an employee to make a request to their employer and have that request properly considered – but not to insist their employer makes the changes requested.

Ultimately, employers have businesses to run and it will be up to them to decide if the requested arrangements are viable. If an employer has reasonable grounds for rejection, it is possible to insist the job is performed as advertised, even when faced with an immediate request for flexible working.

However, employers should remember that flexibility in the workplace is a lifeline for some, rather than a perk, and has provided significant benefits in terms of wellbeing and work-life balance for younger families, single parents, carers, and lower earners, in particular.

Consider the situation

The majority of employees are not out to exploit their employer’s generosity, and businesses must recognise this. Reasons behind flexible working requests differ, but each must be thoroughly considered to find a mutually beneficial arrangement. Employees can have a happy work-life balance, and employers can be safe in the knowledge that the running of the business won’t be affected.

Consider productivity

If an employee is more productive in the morning or later in the day, allowing them to adjust their time in the office to suit their preferred working patterns can improve efficiency and quality. Plus, providing employees with a better work-life balance can make them more willing to put in extra effort when needed.

Consider reputation

Attracting and retaining employees is a much easier task when businesses have a reputation for being flexible and forward-thinking. Many employers now consider their flexitime and modern working practices real selling points for the business, drawing in candidates and keeping their current workers engaged and enthusiastic.

Consider training

Flexible working is becoming increasingly common, with conversations surrounding such policies inevitable for both new candidates and current employees. As a result, training is a wise move, ensuring employers have the knowledge and tools they need to create the best flexible working packages for both them and their staff.

Ultimately, balance is everything and the needs of the employee should not outweigh the needs of the business, and vice versa. By inviting honest discussions in the workplace, the result can be a positive one for all involved, rejuvenating employees and boosting productivity.

Furthermore, providing flexible working, where viable, enables employees to feel included, which means they are likely to be more engaged. This sense of belonging breeds an atmosphere of trust, as well as loyalty, which fosters multiple benefits for the workplace. For example, attracting and retaining employees is a much easier task when businesses have a reputation for being flexible and forward-thinking.

With this in mind, employers should consider every request carefully, weighing up the benefits for the employee and the company against any potential adverse effects and ensuring that any decision is not discriminatory.

 

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Nick and Lubna specialise in all aspects of employment law including advising employers, business owners and senior executives on the strategic employment law issues affecting their business.

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Published: 11th December 2022
Area: Corporate & Commercial

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