UK: Flexible Working: Floodgates Of Doom Or Fountain Of Opportunity?

Last Updated: 14 July 2014
Article by Alison Garrow

Summary and implications

All employees can ask for flexible working from 30 June. Billed in the media as a sea change in working culture, you will have asked yourself about the impact this will have on your business and the changes you will need to make. Here are our top three tips for avoiding the doom and riding the wave as smoothly as possible:

  • Determine the business strategy – will you welcome requests or will they have a negative impact on business?

Offering and embracing flexible working can have a positive impact on business and can be used by your business as a tool for attracting and retaining good people. Generation Y and Millennials tend to value a work/life balance more and having a creative approach to offering flexible working will allow you to stand out as a future "employer of choice". 

Conversely, you may assess your business and feel that offering diverse and flexible working patterns will disrupt it and have a detrimental effect on the service you can provide.

Whether you come out for or against flexible working, your business needs to choose its approach, tailor its policy and structure its responses in line with this.

  • Change your policy – revise your process and cover new challenges

With the widening of the right to request flexible working to all employees, no longer only to those who have responsibilities as a carer, your policy will need to be updated. The Government has repealed the detailed procedure for handling requests and you should take advantage and revise your process. There are also new considerations to cater for – how to handle competing requests (the Acas Code and Guidance allows you to operate a "first come, first served" policy), how to vary the balance of who works flexibly as time goes on and whether you will use trial periods.

  • Co-ordinate your responses – adopt a consistent approach to handling requests or the door will open to discrimination claims

Now is the time to train your managers in the opening up of the right to ask for flexible working and in your business' approach and policy on it. One of the problems businesses will face will be that different managers in different departments will have different attitudes – some will be more flexible than others. We recommend having a company co-ordinator for flexible working who is aware of the requests across the business, knows which have been granted and which declined, and who can ensure you don't fall foul of discrimination laws.

Choosing your business strategy

The approach you take to flexible working will depend on the needs of your business – the need for coverage of core hours and/or work to be carried out on-site – and this may vary for different parts of the business. For certain sectors (e.g. retail and manufacturing), it may not be possible allow people to work from home or at different times from their colleagues. Some pros and cons to consider:

Pros

Cons

Opportunity to attract and retain good people

Employees working non-regular hours may have a negative impact on covering core hours

Build employee loyalty by supporting their other interests

More limited availability from employees may limit your flexibility as a business, e.g. to cover peak customer times

Allow employees to gain new skills in their own time which may make them more valuable employees

If a number of employees work remotely, this could erode team spirit

Long term, you may even be able to reduce your office space requirements if a number of employees work remotely

Although the right to ask for flexible working has been extended, the reasons the law allows a business to give for turning down a request remain the same. If business needs make flexible working unattractive to your business, you will still be able to justify not granting requests – it is a right to ask to work flexibly not a right to work flexibly.

Changing your policy – relaxing procedure and providing for new challenges

In recognition of the fact that businesses will likely face more flexible working requests now that any employee may ask for it, the Government has repealed the cumbersome procedural rules and time limits which attached to flexible working requests. The requirement now is for an employer to deal with the application "in a reasonable manner". Notably, the employer no longer has to allow the employee to appeal the decision if the request is refused, and the employee no longer has a right to be accompanied to any meeting where the request is discussed.

However, the accompanying Acas Code and Guidance recommend that employers consider giving employees an appeal and consider allowing them to be accompanied. We suggest a sensible approach is to take advantage of the non-obligatory status of the right to be accompanied and only allow employees to be accompanied in exceptional circumstances. Whether you allow an appeal of the decision is likely to depend on the size of your business – larger businesses should retain this process as being "reasonable" for them given their resources, but smaller businesses can more readily justify not having this extra administrative layer in their process.

An employer must communicate its decision to the employee within three months of receiving the request and this timeframe should encompass any appeal (if you allow one). The timeframe can be extended if you agree this with your employee. This will be useful particularly if you wish to use a trial period to test the viability of the employee's request – you can agree to postpone the final decision until the expiry of the trial period.

You may want to record in your policy how you intend to prioritise competing requests. It may be possible for you to agree a certain number of employees to work flexibly, but not every member of the team. You should be careful not to apply any criterion which could be discriminatory. The Acas Code and Guidance make it clear it is acceptable to apply a "first come, first served" system.

Reassuringly, employees still only have the right to make one request per 12 months.

Training – ensure you have a consistent approach across the business

In order to avoid making decisions which may be discriminatory, you will need to ensure that there is consistency in applying your policy to requests. Managers will need to be trained in order that they are aware of the extension of the right to all employees and in how to deal with the request reasonably (and in line with your policy).

We suggest it will be helpful for larger businesses to have a flexible working co-ordinator, who is aware of the policy and aware of which requests have been granted across the company.

So whether you choose to embrace the new culture which flexible working could bring, or to preserve "business as usual", by following these top tips we believe you should be able to comply with the obligations of the new flexible working regime without sinking!

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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