The Employment Relations (Flexible Working) Bill had its third reading in the House of Lords recently, meaning it’s one step closer to passing and becoming law.
But what is the Flexible Working Bill? And what changes does it propose for employers?
Employment Solicitor Chris Dobbs answers these questions and more in his latest article.
What is the Flexible Working Bill 2023?
The Flexible Working Bill is set to provide employees with greater rights in regards to flexible working, allowing them to request changes to their work arrangements from the first day of their employment.
These requested changes can include amendments to working hours, where you work (for example, in which office location) and home-working arrangements.
Previously, employees have only had the legal right to suggest such changes six months into their employment.
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Can you refuse a flexible working request?
An additional change, under the bill, means that businesses will be legally required to consult with employees before rejecting any flexible working request.
In practice, many businesses were complying with their obligation to “reasonably consider” the request by discussing it with the employee anyway and not doing so was likely to result in accusations of not reasonably considering the request.
Managers will have to respond to such requests within two months, a reduction from the current three-month period.
How does the flexible working bill affect employers?
The effect on employers is likely to be limited as this Bill only makes changes to existing legislation. The right is for workers to make a request and have it properly considered not to have the proposals implemented.
The two big changes which employers will need to be aware of is the requirement to consult with the employee and the changes to the request itself, in particular that the employee no longer has to explain the effects of their proposed changes on the business.
The reasons for rejecting have not changed.
Related: Government Proposes New Changes to Worker Rights
What reasons can an employer refuse flexible working?
Eight reasons are set out in the legislation, and they are broadly that the proposed changes would have a negative impact on the business’ ability to staff itself or cater to its customers/clients.
Providing an employer can reasonably show that one of the eight reasons applies, they can still reject the flexible working request. The main difference under the new legislation is that this should form part of a consultation process, and this should probably be read as requiring that the consultation be effective and meaningful.
Even if not required by law, a meaningful consultation may result in a compromise position on flexible working which is acceptable too both the employee and employer.
The eight reasons in full are:
- the burden of additional costs,
- detrimental effect on ability to meet customer demand,
- inability to re-organise work among existing staff,
- inability to recruit additional staff,
- detrimental impact on quality,
- detrimental impact on performance,
- insufficiency of work during the periods the employee proposes to work,
- planned structural changes
What are the benefits of flexible working for employers?
Despite some opposition to flexible working arrangements, an increasing number of employers saw the benefit during and following the covid-19 pandemic.
A flexible workforce or the ability to work flexibility can give businesses:
- Reduced overheads and operation costs as they are only staffing to requirement
- Improvements in employee satisfaction, retention and productivity
- Access to a more diverse and/or better quality talent pool
- The ability to provide services above and beyond normal hours
Most businesses are capable of implementing some form of flexible working and this should not be confused with staff being permanent “home workers”; there are many forms of flexible working to explore which can suit business needs while also benefitting staff.
How to manage flexible working effectively
Introducing flexible working does require careful planning. A spart of the consideration and consultation process, employers will want to look at the potential impact on other staff, the effect on stakeholder engagement and the broader implications for the business.
Where requests come from staff members, we would always suggest implementing a trial period to see if the arrangement works for both the employee and the business more broadly.
There is some benefit in having a policy which allows for informal requests that can be fully trialled in this way. Agreement to changes through the formal procedure under the legislation results in a permanent agreed change to working patterns.
If the idea is to roll out flexible working more widely, a longer period of consultation should be considered as different members of staff may have a variety of reasons for being in support of it, opposed to it, and will have their own ideas as to what benefits them.
Where flexible working is being introduced, this would not be under the legislation but would need careful management to avoid contract breaches and even discrimination claims.
How to deal with employee resistance to flexible working
Far removed from the employee who wants to work flexibly are those who do not. Staff could have many reasons for refusing a flexible pattern:
- It may reduce their hours and therefore income,
- Homeworking even only occasionally may not be an option for them due to their home life, or
- They may simply prefer to be at the workplace to keep a degree of separation.
In all these situations, trying to impose a particular pattern will, at very least, result in resentment from that individual and may give rise to contract claims.
It is important to remember that hours, location, role and pay are all fundamental contract terms which can be difficult to change without agreement.
As always, communication is key. An employee who understands the reason for a proposed change is more likely to be amenable to discussing it.
An environment where an employee feels comfortable to better explain their reasons for any resistance means you as the employer are in a stronger and more informed position to consider alternative options.
Related: How to write strong employment contracts - Advice for Employers
An Employment Solicitor’s View
Chris Dobbs, Employment Solicitor at Frettens, said: “The Bill, as and when it becomes law, is absolutely a win for employees as it removes some of the features of the original legislation which limited its effect.
The introduction of consultation is a higher threshold than reasonable consideration and the fact the employee no longer has to highlight possible reasons for rejections also somewhat balances the law.
However, we would always encourage employers to be open to flexible working and different work patterns even before the employee’s first day. If this is something which can be considered, then an open and effect recruitment process should have already identified as such and that conversation can be had as part of talent acquisition rather than being introduced by the employee early in their role.
Related: The legal implications of recruitment that employers need to know
Flexible Working Policies
Chris continues: “Employers should consider having informal flexible working policies which allow for longer and more detailed discussions as well as trial periods to allow for these changes to be considered without the need to rely on the rights in the legislation.
In practice, employers who have already embraced the idea of flexible working are unlikely to see any major changes. Those who do not may find themselves caught out by the changes if a particularly persistent employee is pushing for change.”
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