UK: Flexible Working – Employers Need Flexibility Too!

Last Updated: 30 September 2019
Article by Harry Abrams

It's no surprise that the flexible working debate has resurfaced just as school drop-offs and pickups have restarted.

Currently, an employee is only permitted to make a formal flexible working request (FWR) after 26 weeks' service. However last week we saw the TUC join a campaign calling for FWRs to be enshrined as a day one right.

The statistics published under the apposite headline "Everyone deserves the right to work flexibly" make stark reading for employers. At a time when employee retention is of utmost importance, almost 3 in 10 workers (28%) say more flexible hours is one of the main reasons they might look for a new job.

The flexible working campaign

This latest call comes only a few months after flexible working campaigners supported a private members bill that would make all jobs "flexible by default" unless there were sound business reasons to the contrary.

Campaigners argue the 26 week threshold makes flexible working seem like a privilege one has to earn, when employers should be meeting growing demands for flexibility.

Establishing the right to request flexible working from day one would be a significant development. In 2014, flexible working was reformed dramatically and opened out to all employees; previously only those with parental and/or care responsibilities fell within its scope. To think that only five years later, we may be on the cusp of any employee being able to request flexible working for any reason, shows how much the nature of the UK's workforce has changed.

Desirable or unnecessary?

Earlier this year Labour pledged they would abolish the 26 week eligibility threshold if they were in Government. Whether they repeat that pledge in the coming months remains to be seen.

However, is the change supported by the TUC really necessary or in anyone's best interests?

It's worth remembering that employees can still make informal requests to work flexibly, before they are eligible for a formal FWR. Additionally, some roles may offer a good degree of flexibility from the outset. We regularly work with businesses which actively encourage flexibility, to engage with and motivate their people.

Often an organisation and a new employee will need a period of settling-in before they know what flexibility, if any, they can agree to. In this respect, the current 26 week eligibility requirement is actually helpful. Without this period, it could be counterproductive for the employee to try and persuade the employer they can perform their role just as effectively with a flexible arrangement.

Of course, employees are generally able to ask for bespoke working arrangements during the initial contract negotiation, and may have more leverage at that point than in the first few weeks of their new role.

Could day one rights have a negative impact?

These factors suggest the current 26 week restriction may not materially hinder workforce flexibility.

In addition, the fact we are only discussing the right to make a request rather than automatic entitlement, may mean that even if requests could be made from day one, the end result might still be the same.

Trust plays a big role in flexible working and, rightly or wrongly, there may not be sufficient trust between the parties to agree to a FWR as early as day one. It's quite possible that this lack of trust, plus the relatively wide scope for lawfully rejecting a request, might impede the hoped-for increase in FWRs. For example, in most situations, detrimental impact on performance or inability to meet customer demand can be effectively used as lawful grounds for rejection.

The practicalities

The employer will be aware (if they have good employment lawyers) that when they agree to a FWR it becomes a permanent contractual change, and they cannot simply revert to the former arrangement. This makes it likely that many requests will be rejected to avoid this risk. Presently, an employee can only make one request every 12 months. So if their application in the early weeks of employment was rejected, they would then have to wait for another year. Consequently, employees might do better to wait to make that initial request until they have been in post for a significant period – perhaps 26 weeks.

Employers are obliged to deal with requests when they are received and based on the make-up of the workforce at the time. This could result in tensions between employees. For example, if a new employee has a request to work from home accepted and then the same request is made by a long-standing employee, the employer can reject the second request because it's not viable to have two employees at home.

A workable compromise

A compromise could be reached between the current 26 week threshold and the calls for day one rights. The middle ground might be that whilst a FWR could be made from day one, it would only be temporary during the first year of employment. This gives both parties a practical opportunity to see if the requested working arrangement is effective, and if not, it could revert to the original without the need for mutual agreement. Although the current system has a trial period that operates on this premise, it's rarely used. This temporary change suggestion could be a better solution for all parties.

The way ahead?

On balance, calls for day one FWRs may be addressing the wrong issue. Rather than focussing on eligibility criteria, challenging the reasons for rejection might be a more constructive to way to achieve the real aim of increasing the number of FWRs that are accepted.

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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