Forthcoming flexible working changes
With the forthcoming changes which extend the right to request flexible working to all employees who have 26 weeks’ continuous service at the date of their request, some changes are likely to be required to policies and supporting procedures and documentation.
There is no change to the overarching principle behind the regulations, which is that the employee has a statutory right to request a change, not a statutory right to have the request agreed and implemented.
Previously an employee only had the right to make a request to change their working arrangements in the circumstances where they were caring for children/dependants and met the continuous service requirements. The current statutory procedure for considering requests is removed. Instead employers will have a duty to consider all requests in a reasonable manner; however, employers will have the flexibility to refuse requests on business grounds.
The business reasons for turning down an employee’s request are now enshrined in the legislation, whereas previously it was guidance only.
ACAS Code of Practice
The change in regulations is supported by an ACAS Code of Practice (in draft form currently) and a supplementary guide to the Regulations. As with the ACAS Code of Practice for disciplinary and grievance matters, if an employee brought a tribunal claim related to a flexible working request, the tribunal will look to the new Code of Practice as the benchmark for an employer’s conduct.
What will employers need to do?
Employers will need to review and revise their flexible working policies, where these are in place, to ensure they comply with new Regulations. It is not a mandatory requirement to have written policies, but there should otherwise be some method of communicating to employees their right to make a request.
Employers may wish to create a standard form for making a request, as the 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 the employer could accommodate their request.
The Regulations state that the timescale of making a request, consideration and decision by the employer and an appeal process should be completed within 3 months, so employers may wish to put prescribed timescales into their procedures.
In drafting procedures, and then implementing them when requests are made, employers will need to ensure that they are operating in accordance with the ACAS Code of Practice. (see link below)
Examples of flexible working arrangements
*Moving from full-time work to part-time work. This can be done by reducing the number of days worked, eg going from 35 hours per week over 5 days, to 21 hours per week over 3 days. Or instead it might be to reduce the number of hours but not the number of days, eg going from 35 hours per week over 5 days (7 hour working day) to 25 hours per week over 5 days, (5 hour working day). These sorts of requests are common, especially to help employees combine work with caring responsibilities, or to combine work with 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, enabling the employee to work for a reduced number of days.
*Flexibility of work patterns Annualised hours contracts allow an employee and the employer to manage peaks and troughs in workload or in demand for employment, so that the employee works fewer hours at certain points of the year and more hours 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 also applies to the location where the work is done. 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 for an employer if an employee is making a request to work from home, such as providing any necessary equipment for the employee, ensuring IT connections will work from the employee’s home and that their proposed work location is suitable.
*What are the business benefits of flexibility? There are business benefits in flexible working arrangements which 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.
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 an employer might act to accommodate the request or to refuse it.