Flexible Working Archives | Employment Law Services (ELS) LTD

This week, the Government published its response to its ‘Making Flexible Working the Default’ consultation and in doing so confirmed that employees will gain the right to request flexible working from the first day of their employment.

Flexible Working Continues to Rise Across the UK

We first highlighted the key changes the UK Government were considering back in October 2021 when it announced its Consultation on Flexible Working, which was based on its 2019 manifesto commitment to modernise the way we work.

Since then, the Covid-19 pandemic acted as a catalyst for hybrid working that forced many employers to pivot to an alternative working model to continue trading through the lockdown and this trend towards flexible working has continued to rise despite the removal of all remaining lockdown restrictions back in April 2022 and back in July we set out a Guide for Employers to Get Hybrid Working Right.

The recently published consultation paper on ‘Making Flexible Working the Default” includes a full range of proposals on flexible working options, including job-sharing, flexitime, compressed, annualised, and staggered hours, and phased retirement as well as well as giving employees the right to request flexible working from their first day of employment.

Key Changes to Flexible Working Legislation

The right to request flexible working will become a day-one right and the 26-week qualifying period for making a flexible working request will be removed.
Employees will be permitted to make two flexible working requests in any 12-month period (rather than one);
Employers will have to respond to requests within two months (down from three);
Employers will be required to consult with employees, as means of exploring the alternative options, before rejecting a flexible working request;
The requirement for employees to set out how the effects of their flexible working request might be dealt with by their employer will be removed; and
The eight business reasons for refusing a flexible working request will remain valid.

The decision to make the right to request flexible working a day-one right was widely supported by both individuals and business representatives with 91% of all respondents being in favour and it is believed that this will, according to the report, support a shift in workplace culture, moving away from the notion that the ability to request flexible working is an earned benefit and will make flexible working accessible to more employees (an estimated additional 2.2 million people), supporting labour market participation and improving workforce diversity.

Employers concerned about the implications of these changes may take some comfort from the fact that the in its conclusion in the report, the Government made clear that the legislation remains a right to request, not a right to have, and that the eight business reasons for refusing a flexible working request have been retained.

No timeline for when the changes will be brought in was announced but there is currently a Private Members’ Bill making its way through Parliament which, having passed its second reading in October, could carry through some of the changes early in the New Year.

In the meantime, Employers will still need to ensure that any requests for flexible working, either formally within the current statutory framework or informally outside it, are managed appropriately and in accordance with the current legislation and/or any policies that are in place and that the process they follow is well documented.

Any failure to manage flexible working requests fairly and reasonably could give rise to possible claims at the employment tribunal, the most significant risk likely being discrimination claims, particularly in circumstances where an employee’s request to modify their working hours to accommodate childcare responsibilities is refused.

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What is Hybrid Working?

Typical hybrid work arrangements allow employees the flexibility to alternate between working in the office or remotely giving them the independence to choose how they can work best on any given day. Hybrid workers may work exclusively at home (on a full-time or part-time basis), divide their working time between home and their employers’ premises, or may work at home on an occasional basis. They may be mobile workers who use their home as an administrative base, or they might work away from the employers’ premises in purpose-designed centres or local hubs.

The Covid-19 pandemic certainly acted as a catalyst for hybrid working, forcing many employers to pivot to an alternative working model to continue trading through the lockdown but the trend towards flexible working continues despite the removal of lockdown restrictions.

In October 2021, we confirmed that the UK Government had published its proposals to reform the existing flexible working legislation to make the right to request flexible working a day one right and the government’s flexible working taskforce has since recommended that flexible working should be the default position for all workers post-pandemic, so it seems clear that hybrid working is here to stay.

Undoubtedly, there has been a steady increase in the number of hybrid workers who spend part of their time working from their workplace and part of their time working from a remote location, such as their home, and the results of a recent Acas survey on hybrid working show that 60% of employers surveyed have seen hybrid working increase following the COVID-19 pandemic. In addition, 52% have seen an increase in staff working from home full-time.

Hybrid Working: Considerations for Employers

The term “homeworker” is not defined in the Employment Rights Act 1996 (ERA 1996) but as the move towards more flexible working continues and the demand for homeworking or hybrid working increases, many employers will need to address a broad range of practical and legal issues. Key considerations for employers include:

The contractual and policy provisions, such as:

Content of section 1 and section 4 statements

Changing terms and conditions of employment

Hours of work

Salary and benefits

Expenses

Confidentiality

Equipment, data security and monitoring

Right to enter

Trial periods and a right to revert

The legal and practical considerations, including:

Reporting and appraisals

Data protection

Health & safety

Computers and display screen equipment

Insurance

Tax

Hybrid Working: Issues Employers Should Address

Employers introducing hybrid working arrangements or entering homeworking arrangements will need to address a variety of legal and practical issues, including:

Considering the need to tailor standard employment contract clauses to encompass homeworking or hybrid working.

Introducing new policies and reviewing existing policies to set out the arrangements and conditions for homeworking or hybrid working.

Taking appropriate measures to protect confidential information and personal data.

Reviewing the health and safety implications of the arrangements, including carrying out a risk assessment.

Deciding whether any special equipment should be provided.

Considering whether any special planning or insurance arrangements are required.

Deciding what arrangements should be made for the management and supervision of certain types of homeworkers and hybrid workers.

Identifying the tax consequences of homeworking and hybrid working.

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Tag: Flexible Working

UK Government Confirms Flexible Working Will Become a Day One Right