Flexible Working

Should the ability to work flexibly become the default?

Given the restrictions forced upon all of us during the Covid-19 pandemic, working from home suddenly and rapidly became “the new normal” for many.  Some 18 months later, a lot of us are slowly making the transition back to the office, be it for the whole week, or part of the week. For many organisations with employees who are now required to come back to the office under pre-existing arrangements, this could prompt a wave of flexible working requests.

The government had already started to consult about the right to request flexible working in 2019 prior to the pandemic, but the consultation was put on hold until 23 September 2021.  The consultation conducted by BEIS is now open until 1 December 2021.

As a recap, the current right to request to work flexibly only applies to those employees who have been employed continuously for 6 months or more and who have not made a flexible working request in the previous 12 month period (even if it was withdrawn).  Importantly, despite some of the media reporting, this is not a ‘right’ to work flexibly, but a right to request to work flexibly.  Flexible working includes a change to working hours, place of work and time of work. The process required the employee to put the request in writing and then the employer to respond within 3 months unless agreed otherwise.  The employer has a relatively wide remit to turn down the request, as long as it fits within the following 8 reasons:

·       the burden of additional costs;

·       detrimental effect on ability to meet customer demand;

·       inability to reorganise work among existing staff;

·       inability to recruit additional staff;

·       detrimental impact on quality;

·       detrimental impact on performance;

·       insufficiency of work during the periods that you propose to work; or

·       planned changes.

Prior to the pandemic, working from home requests were often turned down with employers giving the reason that it would have a detrimental impact on performance or quality. However, over the past 18 months we have seen that this has not been the experience for most businesses, with many fully adapting to a remote workforce.

So, what is the government proposing? Put simply, the consultation requests views on the proposal that this right to request to work flexibly should start on day 1, rather than 6 months into a position. There is also a proposal to introduce an obligation on employers to suggest alternatives to the arrangement as suggested by the employee (if it cannot be accommodated).

BEIS is also consulting on changing the administrative process required for flexible working, by allowing more than one request every 12 months and reviewing the three-month response period currently mandated; and exploring ways to encourage time-limited requests, which are allowed in the current framework but under-utilised.

Certainly, many job seekers will now expect some degree of flexible working to be offered where the position allows.  If this now becomes a day 1 right, it will encourage employers to consider whether flexible working could work from an early stage, at the time of the recruitment process.  Candidates with caring commitments will require certainty before they can commit to certain working patterns.

We would always encourage employers, when faced with a request that cannot be accommodated for one of the 8 stated reasons, to consider with the employee, whether any compromise could be reached, or, if the requested working pattern could be accommodated on a trial basis.  This is in line with the idea behind the government’s proposal that there should be a requirement on employers to consider alternatives to the change requested.

The government has stopped short of requiring large employers to publish their flexible working policies as it was considered that employers needed flexibility in order to adapt their policies at any given time.  Certainly, many employers are updating their policies now to take account of the changes brought about by the pandemic and this is welcomed by the government.

So, should flexible working become the default? Culturally, there has been a shift away from the traditional 9-5, weekly commute into the office and employees’ expectations have shifted.  That is not to say that it is a one size fits all approach; some individuals will not want to work from home for any of the time; some businesses will require the majority of their staff to be physically present due to the nature of the work, but for many of us, hybrid working brings many benefits.

The proposals set out in this consultation are not game changers and will not make flexible working the default position. What the consultation does seek to achieve is the promotion of cultural changes in order to remove barriers to flexible working. Certainly, the removal of the requirement of 6 months’ service before being able to make a request, will force employers to consider whether the work can be done flexibly at the start of the recruitment process.

As always, employers should tread carefully when turning down a request for flexible working for working mothers with childcare commitments, or those employees who may have a disability unless it can be justified. Where appropriate, flexible working can provide many benefits to both employers and employees and, in our view, is good for inclusion, wellbeing and productivity.Employers who are ahead of the curve on this are more likely to attract and retain a diverse workforce.