Plans to make flexible working a ‘day one right’ are currently working their way through the House of Lords as part of the Employment Relations (Flexible Working) Bill.

Uncertainty over the full implications of these Government proposals to change working regulations to give employees greater flexibility over when, where and how they work is of concern to Britain’s small businesses.

Overview of the changes

This imminent new legislation is likely to mean workers will be able to request flexible working from day one of employment, rather than having to wait for 26 weeks’ service, as at present.

In addition, two such requests will be allowed in any 12 months period rather than one. Furthermore, the change would also remove the requirement for employees to explain what effect the request would have on their employer and how that might be addressed.

Employers will have only two months in which to make decisions on statutory requests, a reduction of one month from current requirements, and employers will be required to consult with employees and discuss alternative options before rejecting a request. 

The proposed changes to this legislation still only give employees the right to request flexible working arrangements not a right to have them implemented, however there remain only eight legitimate reasons why a flexible work request can be refused.

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The impact on businesses

Although there is general agreement that more flexibility is a good thing and can lead to a more motivated workforce, there are concerns about this change. This mainly surrounds uncertainty and insecurity as to how this legislation will work out and whether offering more flexibility will actually benefit the business.

Companies may feel morally, if not legally, obliged to accede to requests that may impact negatively on the business.

More and more SMEs are becoming aware of this impending legislation and are concerned about it will affect them, based on our increasing number of conversations with businesses on the topic. We will absolutely get more queries in time, especially when it becomes a live issue.

The enactment of legislation will also be a reminder to all employees that they have this right, leaving small businesses to wonder what the impact is going to be, especially if one request has a domino effect.

Points to consider

As employee knowledge increases, businesses would have to ensure that they maintained a fair and consistent approach to flexible working requests.

Interestingly, the legislation does not make provision for trial periods, such as if a company is unsure whether arrangements are going to work and they want to agree to such a period followed by a review with all affected parties.

We believe that the establishment of trial periods would demonstrate that an employer has given due consideration to a request and we would suggest this may be a way for businesses to assess and evidence the impact of the modified working arrangements.

Legislation also doesn’t require the provision of an appeal in the flexible work request process, but we would strongly recommend that an appeal is offered to employees who have a request rejected to demonstrate a fair process.

Changes to working environments

It is commonly accepted that there has been an overall increase in flexible working because of Covid 19. However, while the pandemic forced people to work more flexibly and informal agreements were made, many of these were not under a statutory flexible work request and a good number of employers have now tried to revoke these ‘privileges’, which may well result in more formal flexible statutory requests now being made.

Recent statistics from the HR industry’s professional body, the Chartered Institute of Personnel and Development, noted that while working remotely has significantly increased since the pandemic, there has been a drop in other aspects of flexible working, possibly because people have in any case been more easily able to achieve the desired work-life balance.

Flexible working doesn’t just mean hybrid working – it refers to any working arrangements that give employees more flexibility over the duration, location and times that they work, including working reduced days/hours, use of job-sharing, flexitime, and working compressed, annualised or staggered hours.

While employees would be able to reap the benefits of this extended legislation, there remain concerns from SMEs. This new legislation could give rise to a significant number of requests being made on day one of the employment relationship. Thereby ending the degree of certainty that employers currently have, that the newly appointed employee will work the contracted days and hours offered at the interview for at least the first six months.

Minister for Small Business, Kevin Hollinrake, said: “Giving staff more say over their working pattern makes for happier employees and more productive businesses. Put simply, it’s a no-brainer.

“Greater flexibility over where, when, and how people work is an integral part of our plan to make the UK the best place in the world to work.”