Flexible working – is it still working?
Kimberley Clayton examines changes to employees’ legal rights to request flexible working.
According to recent figures by the Chartered Institute of Personal Development, 83 per cent of organisations have hybrid working in place; 45 per cent have a formal policy; 24 per cent take an informal approach, and 13 per cent are developing policies through learning/trialling.
Hybrid workers divide their working time between home (or another remote location) and their place of work, while homeworkers work exclusively at home. In 2022, the Advisory, Conciliation and Arbitration Service (Acas) published findings of a hybrid working survey in which 60 per cent of employers surveyed had seen hybrid working increase following the Covid-19 pandemic, and 52 per cent had seen an increase in staff working from home full-time.
A business with employees working in a hybrid or homeworking arrangement will need to consider a range of legal and practical issues, such as adapting their standard employment contract clauses to include hybrid working or homeworking, and introducing new policies or reviewing existing policies to set out arrangements and conditions.
Employees rights
Employees with at least 26 weeks’ continuous employment can make a request for flexible working for any reason. An employee can make one flexible working request in any 12-month period and the changes they can apply for include the hours they work, the times they are required to work and their place of work.
The employee starts the procedure simply by making a written request. Their employer then has three months to consider the request, discuss it with the employee and notify the employee of their decision.
There is a requirement for the employer to deal with the request in a reasonable manner, and they can only refuse a flexible working request for eligibility reasons or for one (or more) of eight prescribed reasons, eg the work cannot be given to another member of staff to carry out, or that the business would incur extra costs by granting the request.
If an employer fails to follow this procedure, then the employee can bring a claim to the Employment Tribunal.
Changes on the horizon
On the 20 July, the Employment Relations (Flexible Working) Bill received Royal Assent. When it comes into force, probably in a year’s time, the following changes to the current regime will apply:
- Employees will no longer have to explain what effect, if any, their requested change would have on the employer and how any such effect might be handled.
- Employees will be entitled to make two requests in any 12-month period.
- Employers will not be permitted to refuse a request unless the employee has been consulted.
- Decisions must be made within two months (reduced from three), although it will remain open for the parties to agree a longer period.
- The current requirement for an employee to have at least 26 weeks' continuous employment by the date of a request will be removed by secondary legislation.
- Updated ACAS Guidance will be published.
- It will remain a right to make a request, not a right to flexible working.
Guidance for employers regarding hybrid working
Sixty-six per cent of employees say their employer is supportive of flexible working, with around a fifth saying they are unsupportive. However, only 47 per cent would feel comfortable requesting a formal flexible working pattern (28 per cent uncomfortable) and 53 per cent would feel comfortable requesting informal flexible working (21 per cent uncomfortable).
Ultimately, there is no automatic right for employees to work from home or another remote location. However, making an application for hybrid working can form part of a request for flexible working arrangements under the statutory scheme.
Acas guidance says hybrid working policies should explain how hybrid working can be requested, how job roles are assessed and how decisions will be made. Remote staff should have access to the same opportunities, such as team building, training and social activities, as those in the workplace. Transparency and fairness are important in the decision-making process, and alternative forms of flexible working can be discussed.
Acas recognises that employers may need to have different arrangements depending on the role and needs of their employees, and a trial period to test hybrid working and establish any necessary adjustments may be helpful.
Kimberley Clayton is a solicitor at Ellisons Solicitors.
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