One significant change in recent years is the broad acceptance that Monday-to-Friday, nine-to-five is largely a thing of the past. Things have moved on. This development has gathered pace since the pandemic, with job applicants and workforces in most industries now having an expectation that flexible working will be available.
Does this mean that when a person asks for a different working pattern or place of work, they’ll get it?
Not necessarily. While businesses may be under commercial pressure to give new recruits and existing staff what they want, flexible working is still not a right. A job applicant may be able to negotiate flexibility during the recruitment process. An employee who wants to build flexibility into some aspect of their role – condensed hours to allow them to do the school run, job-sharing, or remote working, for example (there are lots of possibilities) – can talk to their employer about this. Employers should take care to handle these types of discussions and decisions about flexible working carefully, not least because of the risk of discrimination claims.
But there’s also a statutory process for making a flexible working request, which has been in the spotlight because of proposed changes that are working their way through parliament. The statutory process is formal. It is limited in application (there are rules about who can use it and how often) and it places additional responsibilities on employers that are being asked to consider changing aspects of an employee’s working pattern. It’s also here to stay, albeit in a modified form.
The statutory process – now
A statutory request for flexible working can only be made by an employee who has at least 26 weeks’ continuous employment and who hasn’t made a request in the last 12 months.
The request could be about any type of permanent or temporary change relating to: (a) the employee’s hours, (b) the times when the employee is required to work, or (c) where they work, although generally FWRs tend to deal with permanent changes. It must be in the right format, which includes being in writing and specifying that it’s a statutory flexible working request. As well as spelling out the proposed change, the request needs to explain any effect the change could have on the employer and how that could be combatted.
When an employer receives a statutory request, this triggers the start of a three-month window in which to deal reasonably with the request and give a decision. While it’s preferable to focus on how the change could be accommodated, employers should always bear in mind the small number of grounds on which a request can be legitimately refused. These include: the burden of additional cost that would be caused by the change, and detrimental impact on quality or performance.
The proposed changes
These are wrapped up in The Employment Relations (Flexible Working) Bill 2022-23. They are:
- Removing the ‘26 weeks’ continuous service’ requirement, so that the right to make a flexible working request applies from day-one of employment.
- Increasing the number of requests that can be made in a 12-month period from one to two.
- Requiring an employer to consult with the employee if it’s thinking about rejecting their flexible working request.
- Reducing the time an employer has available to respond to the request from three months to two.
- Doing away with the requirement that an employee’s request must set out how the employer might deal with its effects.
The reforms will certainly widen the scope for formal flexible working requests to be made and should go some way towards helping employers and employees have constructive conversations around different ways of working. But, crucially, the ‘right’ remains a ‘right to request’. The employer will still need to agree to an employee’s proposed new working arrangement, and the grounds for refusing a request will remain in place.
The timeframe for implementation of the legislative change isn’t yet known, so for the time being, employees and employers should continue to make and handle flexible working requests in line with the current regime.