Currently, workers must have been employed for 26 weeks before availing of the right to request flexible working. Employees may soon be entitled to make two flexible working requests per year rather than one, and employers will have two months to respond to such requests, whereas they previously had three months to do so.
These new measures come on foot of the government’s Making flexible working the default consultation. Announcing the new measures, the government noted that, “Flexible working doesn’t just mean a combination of working from home and in the office – it can mean employees making use of job-sharing, flexitime, and working compressed, annualised, or staggered hours.”
The government argues that these new measures will give workers “greater access to flexibility over where, when, and how they work, leading to happier, more productive staff. Flexible working has been found to help employees balance their work and home life, especially supporting those who have commitments or responsibilities such as caring for children or vulnerable people.” It also argues that flexible working can help increase productivity and enhance diversity.
If an employer decides it is unable allow a flexible working request in full, it will be required to discuss alternative options before rejecting the request altogether which is not currently express in the way it should be handled. For example, it may be able to offer flexible working on some days, or some other alternative which suits both sides. The new measures will also remove the requirement for employees to set out the detail of the effects their flexible working requests may have when making them, thus simplifying the process of making a request for flexible working hours.
Workers with a guaranteed weekly salary of the Lower Earnings Limit of £123 a week or less will also be protected from exclusivity clauses preventing them from working for other employers under the new measures. This will increase flexibility for some 1.5 million low-paid workers, enabling them to work several short-term contracts at once. This provision is currently in place for zero-hours workers but some have been offering low set hours to get around this prohibition.
The government is clearly determined to make flexible working the norm. However, the new measures are not prescriptive when it comes to how employees and their managers should arrange flexible working. It says, “flexible working is different for every employee, employer, and sector … Because of this, the government will not instruct employers or employees on how to carry out their work, instead we encourage both parties to have constructive and open-minded conversations about flexible working and find arrangements that work for each side.”
Flexible working is not indicative of employees “working less” – rather, it means that the workforce is becoming increasingly more accommodating of a diverse group of people or finding different ways to work.
The proposed new measures are welcome as the current framework for flexible working hours is unworkable for many, and can put undue stress on those looking to enter, or simply remain in, employment. The unreasonable refusal of employees’ flexible working requests can create discrimination based on disability or sex, where care is involved. The cost-of-living crisis has exacerbated this issue, with fuel prices and childcare costs putting additional pressure on workers.
In practice, this means that a lot of good will and flexibility will need to be shown on both sides. This marks a seismic change in how British workplaces use flexible working. In the past, workers simply followed their employers’ instructions, clocking in and out at set hours and working from home for some employers was seen as a detriment to the business.
The massive rise of flexible working during the coronavirus pandemic showed that it is possible to rapidly move towards more flexible working models, which can in turn lead to a more motivated and productive workforce. The world has had one long trial period and if it has worked during the pandemic it may be harder to show it cannot work after it. There have been certainly some benefits to business which some are keen to continue but for some workers it has not worked as well.
Flexible working rights are no longer a perk, but a necessity in helping to create a more productive and diverse workforce. Indeed, it is commonplace in today’s society for workers to vote with their feet if they cannot get the flexibility they need or desire.
Published in HR Briefing – 20.3.23
