Right to Flexible Working – A Day One Right?

Right to Flexible Working – A Day One Right?

Key Contact: Claire Knowles

Author: Katie Shanahan

The government has begun consulting on its plans to reform flexible working regulations (The Flexible Working Regulations 2014). The current right of employees to request flexible working arises after 26 weeks’ service, however, the proposed changes would mean that this would be a Day One right.

A demand for flexible working

As a result of the COVID-19 pandemic, the majority of us have faced substantial challenges to both our home and working lives. Consequently, the working pattern of employees has shifted, as have their requirements in respect of the location of the workplace, the hours of the day in which they work and the amount of work undertaken.

There is evidently a strong demand for flexible working, where it can be beneficial to both employers and employees. In particular, it seems as though flexible working is key to attracting top talent where 87% of people want to work flexibly, rising to 92% for young people. It also assists in maintaining a highly motivated and productive workforce, whilst creating a more competitive business environment. A government survey shows that 9 in 10 employees consider flexible working to be a key motivator to their productivity at work – ranking it as more important than financial incentives.

Minister for Women and Equalities Liz Truss said:

As we move beyond the pandemic, we must seize the opportunity to make flexible working an option for everyone.

No-one should be held back in their career because of where they live, what house they can afford, or their responsibility to family.

I want everyone to have the same opportunities regardless of the background or location. This is the right thing to do for workers, families and our economy.”

The consultation

The consultation (which is published on the government website) considers the “hybrid working” model in some detail, noting that this is only available to those who can work from multiple locations and that for some, the ability to work from home is not always a wholly positive experience. It highlights the fact that the needs of us all as individuals vary drastically and that businesses need to somehow cater for this. By way of example, the needs of a young person on a graduate scheme who requires hands-on training for their role may not be met through working from home policies, whereas in many cases this would be more beneficial for parents with younger children.

In summary, the consultation sets out five proposals, with the first being the right to flexible working from day one. It also gives thought to whether the eight business reasons outlined in the Employment Rights Act 1996 for refusing a request for flexible working still remain valid and proposes requiring employers to suggest alternatives.

The Department for Business, Energy and Industrial Strategy have also considered changing the administrative process for flexible working. The proposals debate allowing employees to make more than one request every twelve months, as well as reviewing the current three month deadline for employers to provide a response.

In addition, the plans propose to introduce a day one right to one-week’s unpaid leave for carers balancing a job with caring responsibilities.

Why only a right to request?

It appears as though some consideration has been given to the “right to have” as opposed to the “right to request”. This would remove the ability of the employer to turn down the request. The consultation notes that due to the range of different roles and ways of working within them, the multiple forms of flexible working, the broad range of individual needs and the wide range of business models, that this was not achievable or practical in a sensible way.

It was concluded that the method of balancing work requirements and specific individual needs should start with a conversation between employer and employee, namely, an employee request.

What will the true impact be?

It will be interesting to see whether there will be a shift in access to flexible working as a result of the move to a Day One right. It will undoubtedly have some impact where applicants will know that they can ask for flexible working before applying for a job, meanwhile employers will need to consider whether flexible working can be offered before jobs are advertised.

Further, if an employer cannot accommodate a request, the employer would then need to consider the alternatives that could be offered. There will therefore be a switch in the position to an automatic right to work flexibly unless there are ‘good reasons’ not to.

Nevertheless, employers are still entitled to refuse such requests, suggesting the impact of the Day One right may be limited or even non-existent. The demand for jobs may also override the demand for flexibility in the workplace, where employees might be willing to sacrifice the need to work flexibly for the sake of keeping or acquiring a new job. A certain conclusion is that there is no ‘one-size-fits all’ solution, and that employers will need to adapt to being better able to support flexible working, whether this amounts to the amount, timing or location of the work.

Practical steps for employers going forward

From our experience, it is clear that flexible working is not going anywhere. Both businesses and employees can clearly benefit from it in some way and there is certainly an expectation that certain policies should be adapted if they have not been already.

Therefore, we would encourage employers to put together their flexible working strategy at the outset, so that is clear for employees to follow. Having worked with various businesses across multiple industries and advised on flexible working strategies and how best to communicate these to staff, we believe it is best to advise on such policies at an early stage, rather than take a more reactive approach to formal requests.

Whilst most businesses might follow the statutory policy, if there is clear guidance and expectations are communicated to staff from the outset, it will assist in providing clarity and prevent misunderstandings, allowing business to both attract and retain talent. It can also benefit employee relationships where arrangements can be discussed on an informal basis, avoiding the lengthy and formal statutory process.

If you have any further queries or require support, please feel free to contact the employment team.

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