Forthcoming flexible working changes

Updated: December 21 2021

The government have recently announced plans to make the right to request flexible working a day one right, in addition to new entitlements for unpaid carers.

The consideration for businesses now is whether to introduce these new entitlements ahead of time, or wait for the legal changes and finer details to be confirmed.

There is no change to the overarching principle behind the regulations, which is that your employees will have a statutory right to request a change, not a statutory right to have the request agreed and implemented.

Proposed changes

Currently an employee only has the right to make a request to change their working arrangements when they have 26 weeks’ continuous service at the date of their request. As an employer, you will have a duty to consider all requests in a reasonable manner.

However, you will have the flexibility to refuse requests on business grounds, including:

• Planned structural changes
• The burden of additional costs
• Whether quality or standards will suffer
• If you aren’t able to recruit additional staff
• If performance will suffer
• If you won’t be able to reorganise work among existing staff
• If you will struggle to meet customer demand

The new proposals are considering whether to limit an employee’s application for flexible working to one per year. They will also consider reducing the current three-month period an employer has to review any request.

The proposals also ask employers to look at alternatives if they cannot accommodate the request. For example, where it may not be possible to change an employee’s hours on all working days you could agree to amendments on certain days instead.

Acas Code of Practice

The Acas Code of Practice on flexible working requests is available online and worth familiarising yourself with.

As well as for general best practice guidance, if an employee brought a tribunal claim related to a flexible working request, the tribunal would look to the Code of Practice as the benchmark for your conduct.

As an employer, what do I need to do now?

There are no current requirements to make changes, but we recommend that you are ahead of the curve if possible. This includes reviewing and revising your flexible working policies if necessary.

Although it is not a mandatory requirement to have written policies, there should be some method of you communicating to your employees their right to make a request.

You may wish to create a standard form for making a request, as current regulations require it to be in writing, setting out the proposed working arrangements, when these are requested to start and how the employee thinks that you could accommodate their request. It is worth noting that this part of the current regulations is not set to change.

The regulations currently state that the timescale of making a request, consideration and decision by the employer, and an appeal process, should be completed within three months. However, the proposals are looking at reducing this timescale, so it might be worth reviewing whether three months is necessary and removing this from any process you may currently have.

In drafting procedures, and then implementing them when requests are made, you will need to ensure that you are operating in accordance with the current Acas Code of Practice. You are also encouraged to open the right to request flexible working to the whole organisation from day one.

Examples of flexible working arrangements

• Moving from full-time to part-time work
  This can be done by reducing the number of days worked, such as going from 35 hours per week over five days, to 21 hours per week over three days. Or instead, you might consider reducing the number of hours but not the number of days, such as going from 35 hours per week over five days (seven hour working day) to 25 hours per week over five days, (five hour working day). These sorts of requests are common, especially to help employees combine work with caring responsibilities, or to allow time for studying, volunteering or preparing for retirement.
• Flexibility within full-time hours
  With compressed hours, the contracted hours remain unchanged, but the pattern of work varies so that the hours are worked over a longer pattern on certain days. This enables employees to work for a reduced number of days.
• Flexibility of work patterns
  Annualised hours contracts allow both employee and  employer to manage peaks and troughs in workload or in demand for employment. This is so that the employee works fewer hours at certain points of the year and more at other times, working to an overall annual total rather than weekly contracted hours. These contracts can work where parents might wish to have more time at home during school holidays, and where students are available for more work during their holidays. Some employers use these arrangements to balance these two staff groups, where workload does not diminish but employees have contrasting requirements.
• Flexible working
  Flexible working also applies to the location where the work is done. This is more commonly called remote or hybrid working, depending on the agreement. This way of working has increased dramatically since the arrival of COVID-19 and looks like it is here to stay. An employee might make a request to work from home for part of their weekly contracted hours or to work from a different business location such as a different office or out of a different depot. There are additional considerations if an employee is making a request to work from another location. Read our article on how to plan for successful hybrid working for more information.
• What are the business benefits of flexibility?
  There are business benefits in flexible working arrangements. These include retaining staff, saving on the costs associated with staff turnover, positive employee engagement, and extending the availability of employees to provide a service over longer working hours to benefit customers.

Kent HR support with flexible working changes

The Acas guidance on handling requests in a reasonable manner has some useful examples of the sorts of requests which are made, and case studies which demonstrate how you might act to accommodate or refuse employee requests.

Alternatively, get in touch with one of our friendly HR consultants today who offer a range of operational HR support including guidance on flexible working arrangements. To contact us, please complete the enquiry form on this page.