According to The Times, ministers are set to confirm laws to protect flexible working that were first mooted before the pandemic. Any employee will be able to make the request but the move is particularly aimed at enabling women, disabled people, parents and carers to balance their professional lives with personal commitments.
Under the present rules, employees cannot request a hybrid working arrangement until six months into a job.
Employers are obliged to consider the request in a “reasonable manner” and have to make a decision within three months. If the request is refused, the worker may have grounds to take the company to an employment tribunal.
Ministers will confirm the change on Thursday. A government source told The Times: “The business case is compelling. If you’re happy at work you’re less likely to leave, and companies benefit from motivated employees.”
So how should businesses deal with requests? Here are our five top tips...
Remember to act ‘reasonably’
A Flexible Working Request is a formal request, made in writing by an employee to change their working pattern – this could include arrangements such as a reduction in hours, a change in hours, compressed working, home working or ‘flexi-time’.
An employer has a duty to deal with the request ‘reasonably’. That is likely to include considering each request carefully, weighing the advantages and disadvantages of the request, and discussing matters in detail with the employee.
Be aware of the 3 month deadline
The employer must notify the employee of the decision (including the outcome of any appeal) within 3 months of the date on which the employee’s request is made. This 3 month deadline can be extended but only with the consent of the employee before the 3 month initial period ends.
The request only has to be considered, not granted
An employer only has a duty to consider the Flexible Working Request – it does not have a duty to grant it. There will be occasions upon which a Flexible Working Request cannot be accommodated by an employer and will have to be declined. There are 8 specific grounds for refusing a request and an employer must point to at least one of these grounds when doing so. These include, the burden of additional costs and the detrimental impact on quality or performance.
Consider a trial period
There is nothing in the legislation to prevent parties from agreeing a trial period for the new proposed working regime and doing so can be useful for both parties. This can demonstrate in practice whether the proposed change in working arrangements is workable or if it is simply unsustainable going forwards. From an employer’s perspective, even if the request is ultimately declined following the trial, it will help an employer demonstrate that they have acted in a reasonable manner in dealing with the request.
Be wary of discrimination
Be aware that some employees may have further statutory protection under the Equality Act which an employer will need to be of mindful of when considering a flexible working request. Typically, these requests will be made by employees seeking to vary their working hours in accordance with childcare commitments (possibly on the return from maternity leave), religious requirements (such as not wanting to work on the Sabbath, or being allowed time off to pray or attend worship) or who are seeking adjustments because they are disabled. Refusal of a request in these circumstances can give rise to claims of discrimination. Whilst this does not mean that all such requests must be granted, it is recommended that advice is taken prior to considering a refusal of such a request.
