Flexible working has evolved in the years following the Covid-19 pandemic, and the ability to adjust working hours and conditions is now considered a ‘must-have’ for many employees – and a way of attracting and retaining talent by employers.

Data explains why the issue is so important to businesses. Research by the Chartered Institute of Personnel and Development (CIPD) shows that six percent of employees changed jobs in 2022 specifically due to a lack of flexible options, and 12 percent left their profession altogether due to a lack of flexibility within the sector. This represents almost two and four million UK workers respectively.

Every employee in the UK with 26 weeks’ service has the right to apply for flexible working and, by law, employers must treat all flexible-working requests in a ‘reasonable manner’.

There is a defined process businesses must follow when a flexible working application is received. Legal and financial penalties can apply if an employer is found to have refused flexible working unfairly or discriminated directly or indirectly against anyone requesting it.

• Working from home, or hybrid working
• Tailored working hours
• Moving from full-time to part-time
• Job sharing
• School-term working
• Compressed or annualised hours
• Phased retirement

Susan Galashan, Senior Consultant on Employment Law and HR with NatWest Mentor, says: “An employee can request flexible working for many reasons, whether it’s to look after a sick relative, to manage childcare, or even just to have more free time. The reason for the request is less important than whether it can realistically be accommodated by the business.

“Although anyone has the right to request it, there’s no obligation on the employer to grant flexible working. However, there is a process to follow, and only under certain accepted circumstances can the request be refused.”

Reasons employers can reject a flexible-working request:

• The extra costs will damage the business
• The work cannot be re-organised amongst other staff
• People cannot be recruited to do the work
• Flexible working will affect quality and performance
• The business will not be able to meet customer demand
• There’s a lack of work to do during the proposed working times
• The business is planning changes to the workforce

Susan says: “If an employer is struggling to approve a request, it’s a good idea to think about  a compromise with the employee, and it’s considered best practice to consult with the employee before making a decision.”

Employers should be aware of several changes to flexible-working practices which will soon be implemented as part of the Employment Relations (Flexible Working) Act of 2023.

1. The requirement to have 26 weeks’ continuous employment before making a flexible-working request will be removed on 6th April, 2024, as a provision of the Flexible Working (Amendment) Regulations, 2023. Anyone will be able to request flexible working from day one of employment.

2. Employees will no longer have to make a statement of how their transition to flexible working will affect the business. This is currently a requirement under the submission process.

3. The new legislation will require decisions to be made within two months of an application, down from three months, and employees will be able to make two, not one, applications for flexible working in any 12-month period.

4. Employers will be required to consult with an employee before rejecting their flexible working request – currently advised, but not a requirement.

Commenting on the changes on the gov.uk website, Business and Trade Minister, Kevin Hollinrake MP, says: “A happier workforce means increased productivity, and that’s why we’re backing measures to give people across the UK even more flexibility over where and when they work.

“Not only does flexible working help individuals fit work alongside other commitments – whether it’s the school drop-off, studying or caring for vulnerable friends and family – it’s good business sense too, helping firms to attract more talent, increase retention and improve workforce diversity.”

Sometimes employers can’t grant a flexible working request. In these cases, it’s important that the reasons for refusing are valid, and don’t leave the business open to a discrimination claim.

Also, it’s important to note that while employees don’t have a statutory right to appeal, it’s advised that employers offer an appeal process as part of considering flexible working submissions in a ‘reasonable manner’.

An employee can go to an employment tribunal if they feel their employers:

• Did not handle the request in a ‘reasonable manner’
• Wrongly treated the employee’s application as withdrawn
• Dismissed or treated an employee poorly because of their flexible working request, for example refused a promotion or pay rise
• Rejected an application based on incorrect facts

Adds Susan: “There has been a universal shift in attitudes towards flexible working and the new legislation reflects this evolution. Employers need to be aware of the changes and make sure they have internal processes in place to accommodate them.”

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