Flexible Working rules are under review - what could that mean for you?

The Government have launched a consultation in September 2021 Making Flexible Working the Default with a number of proposals.

Despite the heading, the proposal is not aiming to create a positive “right” to flexible working, the final decision will remain with employers, although the proposals will strengthen the right to request flexible terms and the need for evidence, robust procedures and genuine consideration by employers to refuse. Here’s an overview of the key areas of proposed changes…..

There are five areas under examination

1. Making the right to flexible working a “day one” right. Essentially, rather than a right acquired after time this could be raised right at the start of the relationship. This could include considering such options during recruitment, and when “creating” the job in the first place.

2. Ensuring that the current 8 business grounds an employer has for turning down a request remain valid. Essentially, examining whether these grounds remain appropriate through consultation, although not proposing changes at this stage.

3. Requiring an employer to consider alternatives. At present, the employer is only required to deal with the request in front of them. In practice, most consideration would involve considering alternatives, as both good practice in maintaining trust and confidence and also often as a result of the request involving other legal duties, such as reasonable adjustments.

4. Reviewing the administrative process underpinning the process. This involves looking at the current timescales set down for such requests – only 1 request per 12-month period, and 3 months for the employer to consider it. It proposes to remove both of these.

5. Requesting a temporary arrangement. At present, any agreement to a request is a permanent change, unless the parties specifically agree otherwise. The proposal looks at whether it should include the right to make temporary requests in a more clearly set out way, rather than the “all or nothing” approach often taken.

How does this affect employers?

Prior to the pandemic, requests to work from home were routinely refused on business grounds, even when the employee was making the request as a reasonable adjustment due to a disability.

The pandemic forced change on both sides and opened up new possibilities for employers and employees to consider re-structuring the working landscape.

Employers are now more likely to be receiving such requests more than ever before, and also more likely to need to accept them than in the past - when employees have worked from home for many months successfully, any argument to refuse becomes much more difficult,

Even the very Judges who may eventually determine whether the employer’s response was within the law have themselves been working remotely ever since the pandemic. Indeed, the hearing itself could well be done virtually.

In that landscape, it becomes less acceptable to simply say no, without more substantive reasoning, and it also makes a decision more likely subject to challenge.

Top Tips on how to manage this area

Have a clear policy and complaint process

Employers may find that employees are far more aware of their right to make these requests, and far more willing to challenge decisions made by their employer against a request. It’s therefore really important to ensure you deal correctly with any requests you receive, and that you consider not only the right itself, but any underlying issues, such as discrimination issues, which so often is also relevant.

Build flexibility into role design and recruitment

Given the potential for this to become a “day one” right, employers should give thought to this overall as part of a business review, making it much easier to deal with requests, and ensuring that there is a fair and firm-wide approach to any requests (as far as is legally possible). If creating a new post, an employer would be wise to give thought to flexibility, and record reasons for and against when creating the job, although they must always revisit this if requested to ensure that the reasons remain valid. Again, a clear policy, clearly explained to staff is likely to assist in avoiding disquiet and dissatisfaction among staff and keep the employer on the right side of the law.

Employers may also use flexibility as a recruitment tool: If they are offering a significant flexible working option, this may be attractive to applicants – especially if they show themselves to be “ahead of the curve” and doing more than they have to. Conversely, if they are offering in-house on-site experience this can attract high quality applicants especially in junior roles, where the loss of day-to-day learning experiences can be more keenly felt. Whichever works for your business model, ensuring that you are within the law and understanding how it applies to you will keep you away from costly claims.

Careful management of hybrid working and updating contracts

If you do move to more flexible working going forward, you need to assess how you approach that and what internal changes need to come with that.

Employers should update contracts so that they deal with issues such as:

• Who is paying for the costs of home-working such as broadband?
• Risk assessments.
• Security issues.

Undertake a GDPR homeworking review

Employers should ensure that their monitoring is undertaken lawfully and fairly and look at their GDPR and data processing obligations, and also should be very careful of allowing discrimination to creep into their decision-making processes. Monitoring to ensure that they are not promoting more people who work in the office who are likely to be a higher proportion of those with disabilities; men, due to child-care responsibilities; and also may be younger, thus giving possible indirect age, disability, and sex discrimination claims.

Offering a permanent change to home-working can come with conditions – the employee must, for example, sign up to a new contract which will include homeworking clauses, but could include other clauses which the employer wants to bring in as part of the deal. It’s a very good time to have a document overhaul generally, rolling out the new documents as part of the more flexible arrangements.

There are opportunities to be had in this Brave New World, but pitfalls too. Seeking advice on the practices and business as a whole will help put your business in a good position to take advantage and not fall foul of the hidden traps.