A consultation on the Government’s proposals to give all employees the right to request flexible working from day one has been launched.
For employers, the proposals also include having to respond to requests faster than the current three months maximum and provide alternative options following a refusal. Matt McDonald, employment partner at law firm, Shakespeare Martineau explains what these potential changes mean for the future of the workplace.
Part of a manifesto commitment in 2019, the Government is undertaking this consultation to reform flexible working regulations and to respond to proposals from the Good Work Plan: Proposals to support families consultation (July 2019). Since 2014, when the right to request flexible working was opened to the whole workforce, there hasn’t been a noticeable increase in requests. This consultation aims to address this reluctance and make flexible working the norm for more businesses.
Currently, after 26 weeks of continuous service, every employee has the right to make one flexible working request per year. Once a request has been made, if it is rejected, the person must then wait for 12 months before submitting a new request.
Employers have three months to respond, and should they decide to reject the request, they must provide one or more of the valid reasons for rejection, as stated by the Government. These include: the extra costs will damage the business, the work cannot be reorganised amongst staff, and quality and performance will be impacted.
The consultation proposes to change a number of these regulations and has five core parts, which are:
A day one right to request flexible working
The re-evaluation of valid rejection reasons
Enabling more than one request per year and reducing the deadline to respond
Employers having to suggest alternative arrangements
Increasing the use of temporary requests
While none of the proposals would be hugely impactful on their own, if all or most of them are introduced in some way, employers will have to reconsider their approach to flexible working. The goal of the Government is ultimately to normalise flexible working, and if successful, businesses should expect an uptick in people expressing interest in this way of working. In practical terms, this would mean more administration for employers to undertake, and an increased chance of claims for any rejections.
When arranged fairly, flexible working can benefit both employers and employees. After all, happy workers are often more productive. However, for SMEs that may already be under considerable time and financial pressure, it could be viewed as a further resource drain. With a potential increase in requests on the horizon, it might be tempting to reject the majority of them, but SMEs must be careful with this approach. Not only could this create an awkward atmosphere between employer and employees, but it could also be reputationally damaging should word spread. Many people nowadays are prioritising flexible working when looking for a new role, so showing an unwillingness to consider it could be bad for recruitment.
As well as creating reputational problems and a negative business culture, rejections also increase the risk of indirect discrimination claims. These can be brought when employees are treated the same, but this treatment disproportionately affects employees with certain protected characteristics. The most common example is women with childcare responsibilities being more negatively impacted by a lack of flexible working options compared to male employees, with it being an accepted principle that women still bear the brunt of childcare responsibilities.
Employees can also resign and claim constructive dismissal should they believe that the refusal of their request was so unjustified that it has damaged the employer/employee relationship beyond repair. Unlike with discrimination claims, any employee with two years’ service can bring a constructive dismissal claim, and whilst bringing a successful claim is generally difficult, it isn’t impossible where a flexible working request has been rejected unreasonably.
As things stand, employers are not required to provide alternative options for employees when a request is refused, but this could help to lessen the risk of the above types of claims. For example, trying to meet the employee in the middle by offering a temporary rather than permanent change. If an employer appears to be taking requests seriously and is trying to reach a compromise with their staff, then it is less likely that any claims made against them will succeed and should also mean more harmonious employee relations.
To prepare for the results of the consultation, which is due to end on 1st December, employers should revisit their flexible working approach. Even if some – or all – of the proposals aren’t taken forward, flexibility has come to be expected by many employees, particularly in in light of the pandemic, so it should be incorporated into a company’s business model where possible. If not, organisations could find themselves struggling to recruit and retain talent. As a result, businesses should reassess their priorities. Is it better to have talented staff working flexibly or people working rigid hours that are potentially less productive?
Employers may also want to consider agile working. While this is not a legally defined concept, it can promote a positive working culture that is more ingrained than flexible working. In essence, agile working enables staff ad hoc flexibility (for example, to go to appointments or pick up their children from school) without having to book time off to do so, with any lost time being made up at the employee’s convenience. Businesses that have an effective agile working culture may see fewer requests for flexible working and foster better employee relations.
This consultation has undoubtedly started a conversation around flexible working, which is a positive result in itself. How many of the proposals are taken forward remains to be seen, but employers should be prepared for an increase in requests. In future, it may become increasingly hard for employers to justify refusals, so now is perhaps the time to consider how best to implement a culture where flexible working is treated as the norm.