Changes in the rights of employees to request flexible working arrangements have been proposed

In December 2022, the government introduced proposed changes to the rules associated with employees rights to request flexible working. Are you up to speed on what these are and how they may affect your business?

One positive outcome from the past couple of years of crisis, has centred around adaptation. Businesses needed to survive, so while working from home, for instance, was not necessarily a typical practice for many firms, it became essential. The return to the office has seen significant push back by many employees, having become accustomed to the many benefits working from home affords.

Arguments rage on both sites as to whether working from home benefits the business or not. However, one cannot escape the fact that the crisis we have experienced has changed the outlook on life for many employees, and a fair few employers too.

Flexible working though, can mean different things. For some employees getting a better balance between life and work may mean working less, rather than just working from home. An employee may, for example, ask to become part-time, or work fewer hours on certain days, or not at all on some days. Naturally, this may present significant challenges for the employer, not least because allowing one employee the ability to change their wording arrangements may result in an avalanche of such requests. This could cause havoc in many businesses, not just to the HR departments dealing with the situation, but the department heads affected too, having by law, to give serious consideration to the request.

Examples of changes in working arrangements requested:

  • Working part-time
  • Start and finish time adjustments
  • Request ‘flexitime’ – the ability to start and finish as they desire within certain times.
  • Work compressed hours
  • Remote working, which may include working from home, all or part of the timeJob share schemes

The change could be for:

  • All working days
  • Specific days or shifts only
  • Specific weeks only, e.g. school term time, holidays, etc
  • For a limited period, for example for 9 months

There’s no doubt that certain professions can adapt well to a greater percentage of employees working from home, for others though, especially roles that require daily access to office facilities, processes and systems, it is more difficult, but not necessarily out of the question.

What is the current situation regarding requests for flexible working?

Currently, an employee can only ‘formally’ request that the employer consider a request to work from home if the employee has worked at the firm for more than 26 weeks (and only one in any 12 month period). If they have, then a series of processes have to be followed by the employee and then for the employer to review the request and respond. Part of this is for the employer to give adequate consideration to the request. There are eight reasons an employer could use as the basis to refuse a flexible working arrangement request, these are:

  • The cost impact on the business.
  • The work you do cannot be absorbed or reorganised with other staff.
  • The quality or the work produced would have a negative impact on the business.
  • The business would not be able to meet customer commitments.
  • The performance of the business would be negatively affected.
  • The timing of the requested period doesn’t match work loads.
  • The business plan on reorganisation and the request would not match the plans.

An employee can submit an informal request for flexible working at any time. There’s no set process for this and as such rigid timeframes set out in the formal process don’t need to be followed. This can be a better route to take as depending on the nature of the request, the employer may find it advantageous to them also. It may be quicker too.

How will the new proposal affect the current process?

The new proposals recommend making it an employee’s right to request flexible working from day one. Additionally, the employee will not need to set out how the situation created by the employee’s flexible working arrangement may be handled by the employer. Further, the employee will be able to make two such requests a year.

Upon submission of the request, the employer will be required to consult with the employee to explore the impact of the request and how it may be handled as a means to determine if the request should be accepted or rejected.

The employer’s time to respond will be 2 months and not 3 months.

Consensus – a good or a bad change?

The government made various consultations during the preparation of the proposals. As one might expect, there were both advocates and detractors.

The Pro’s

  • It may encourage better communication between employers and employees.
  • May attract those who need flexibility in work arrangements back to work.
  • Offers employers a wider pool of talent.

The Con’s

  • Potentially creates more work for the employer in considering the impact of a request more quickly.
  • Could cause issues day-one with an employee / employer relationship if an employee immediately requests flexible working early in their employment.
  • A potential surge in requests could cause a headache for some employers trying to assess the impact of a greater number of requests.
  • Could cause operational issues.

However, in consideration of the above, the Government decided that ‘on-balance’, it was better to implement this way than not to. The Government highlighted that this was still a ‘request’, not a right.

The Government was also asked to consider the list of reasons that an employer could use to reject a request for flexible working.  During the consultation there was a lack of consensus and so it has been left unchanged.

A cynic could therefore suggest that nothing has really changed, except that the employer has a somewhat greater task in reviewing the request in a shorter period of time.

When will the proposed changes come into effect?

There is no specific time frame for this. The necessary legislative changes will be put before parliament when “parliamentary time allows”.

Need assistance with employment law?

Employment law is one of Foy’s specialties and it can be a complicated field to navigate. Understanding the process for reviewing an employee’s statutory request for flexible working and responding in an adequate manner can be tricky.

Reach out to Foys Solicitors through one of our local offices and seek our advice and assistance.