Currently only at consultation stage, but with the potential to encourage more flexible working applications from staff, our employment law team gives us an overview of the current flexible working laws and what could change if the Employment Relations (Flexible Working) Bill is passed.
With homeworking in particular being a sought-after option for jobs, the proposed changes will certainly look to increase the number of flexible working applications being made.
Current law
There are two ways in which employees can already ask for flexible working:
- As a general request (any employee/worker can ask for a change to their working pattern and can ask as many times as they want to.) The employer can agree or refuse the request, but needs to be aware of not discriminating against the employee if the request is refused. Valid business reasons should therefore be used if the request is to be refused and legal advice sought if there are any doubts.
- Under the flexible working statutory regime which is currently found in the Employment Rights Act 1996 and under the Flexible Working Regulations 2014. This provides the statutory scheme which most employers are familiar with i.e. it allows for employees with 26 weeks service to make a formal application for flexible working. There is then a set procedure that the employer needs to follow including holding a meeting with the employee and only being able to refuse the flexible working application on eight business grounds. Only one application per annum is permitted.
What are the 8 business reasons?
The 8 reasons which an employer can rely on to reject flexible working requests under the statutory regime are:
- 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 the employee proposes to work; or
- planned structural changes.
Note that these reasons will remain in place even if the proposed changes to the flexible working regime go ahead. Employers will still have the final decision over whether to approve or reject a flexible working request provided they do so on the eight business grounds referred to above, which in essence come down to whether the individual and team can continue to do their jobs properly without a knock-on negative effect for the business.
Employers need to be aware of possible discrimination claims if they are refusing requests e.g. is the employee in question asking for childcare reasons or because they have a medical condition which could be a disability under The Equality Act etc.
What are the proposed changes?
In summary the changes would be as follows:
- The right to request flexible working would become a day one right. Currently employees need 26 weeks continuity of service in order to make a flexible working request.
- Employees will be allowed to make two requests per annum instead of just the one request which is currently allowed.
- Employers will be required to deal with the request within two months of it being made rather than the current three month time limit.
- There will be an extra burden on employers in that they will be required to discuss alternatives to the request. For example if an employer wants to reject the request then they must discuss alternative forms of flexible working with the employee.
- The flexible working procedure will be simplified for employees. Currently employees have to set out how the effects of their flexible working request might affect their employer but this requirement will be scrapped.
Employers will need to be careful to avoid any claims of discrimination when dealing with flexible working requests. They should therefore carefully gather evidence which may indicate that the request should be rejected and they should discuss it with the staff member to help them understand the reasoning and to accept why the request has been rejected. This is particularly important when an employee is requesting flexible working for reasons related to protected characteristics such as for childcare reasons or in relation to medical conditions.
Our employment team can assist you in advising whether or not a flexible working request should be approved or rejected and can guide you through the process that needs to be followed to minimise the risk of any claims.
Although the proposals are in the consultation phase only, there is not currently any draft legislation or any timetable set out. The government has however said that it will support this Private Members Bill so it looks like the change will happen but we are not sure when.
Further Updates to Flexible Working Rights
As and when the amendments to Flexible Working Rights are formally introduced, we will be able to share and advise employers in relation to updating their policies and procedures as well as offering support in managing or responding to any flexible working applications/concerns raised by employees.
In the meantime our employment law specialists can give legal guidance based on the current laws to ensure employers are acting legally and to avoid claims.
To reach out to our employment team for any kind of employment law and HR support, contact us on 0161 969 3131 or get in touch using our contact form.