Major changes to flexible working will soon become law. The widely anticipated, and more controversial, amendment that all employees would be able to request to work flexibly from day one of their employment looks to have been parked (for now), however. This means that, as it stands, an employee will still need to have six months’ service to make a formal application. Albeit it has always been the case, and will remain so, that an individual can make an informal request(s) to change their working arrangements at any time during their employment.
Under the new law, formal applications will need to be in writing as before, but employees will be permitted to make two requests a year (rather than one). The existing requirement for an employee to explain how the desired change to their working arrangements would affect the employer, and how any impact could be resolved, will be removed.
The timescale for employers to deal with formal requests will reduce from three to two months. In a bid to promote better, meaningful consideration of such applications, employers will be obliged to consult with an employee and explain why any changes sought cannot be accommodated – before refusing a request. The requirements around what a ‘consultation’ should look like, and whether the employee will still have a right of appeal, are absent from the legislation. Good practice would be to follow the ACAS Code of Practice and hold a formal meeting to consider any requests, and allow a right of appeal. It may also be advisable to build into the consultation process an exploration around alternatives if an employee’s primary request cannot be agreed. Employers will nevertheless be permitted to decline requests based on one or more of the same eight prescribed business grounds in force currently.
The new law will not be as seismic as expected, insofar as a candidate who successfully applies for a position will not be able to formally seek to amend their working hours or arrangements from their first day in post, or during their probation period and before their suitability for the role has been assessed. Notwithstanding the move to make employers more amenable to flexible working, there will still always be occasions where a role is not equipped for flexible working or where a preferred working pattern is not viable for a business. The new law will not derogate from that. Flexible working should no longer be classed as a luxury or a burden, however, and employers who openly discuss the subject with their people will likely gain more in terms of retaining, recruiting, and developing a more diverse workforce. They will also risk less if, when turning down a flexible working request, they can demonstrate a fair and thorough process was adopted and that the business is permissive of different working practices.
Should you have any queries on how your business should prepare for the changes, need your flexible working policies reviewed, or require any employment related advice, please contact Helen Crossland on [email protected] or 020 7725 8034.