Many businesses are concerned about the changes in the Employment Rights Bill and their cost. One of the key changes is the proposal to enhance the rights of workers to seek flexible working. The media have speculated on the government's plans to allow flexible working from the day one – now we've seen the detail of the Bill, what does it actually say about flexible working?
What is the current position?
Employees have a "day one" right to make a flexible working request. An employee may request a change to their employment contract terms and conditions if the change relates to the hours they work, the times they are required to work, or their place of work. The request must:
- Be in writing;
- Be dated;
- State that the request is made under the statutory right to request flexible working;
- Specify the change they want made to their working pattern and the date they wish the change to take effect; and
- State whether they have previously made an application to the employer, and if so, state when that application was made.
After an employee has made a request, an employer has two-months to consider the request, make a decision and deal with any appeal. This decision period can be extended by agreement, for instance if the employer agrees to implement a "trial period" to see how the flexible working arrangement would work in practice. The employer must deal with the employee's application in a reasonable manner and consult with the employee before refusing their request (if applicable). The employer can only refuse a request for one or more of the eight reasons set out in the current law:
- the burden of additional costs;
- detrimental effect on ability to meet customer demand;
- inability to reorganise 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; or
- planned structural changes.
To demonstrate that the request is being dealt with in a "reasonable manner", an employer should be consulting the employee about what could work and what can't. They need to consider the employee's preferred pattern and other options. It is also good practice to allow an employee to be given a period to trial a new arrangement and to be accompanied to any meetings about the working request.
What is the Bill proposing to introduce?
The Bill retains the current right to request flexible working from day one. It is not giving everyone the right to work flexibly, contrary to press reports. It also retains that employers will only be able to refuse an employee's flexible working request if it is for one of the eight specific business grounds listed in statute. However, the Bill adds a new requirement – it must also be reasonable for the employer to refuse the employee's flexible working request on that basis.
Under the new Bill, if the employee's request is refused, the employer will be required to notify the employee of the reason(s) for refusal and explain why it considers the decision is reasonable.
This is not the radical shift from the current position. Employers are additionally required to give clear reasons why their decision to reject the employee's flexible working request for one of the permitted reasons is reasonable. Labour's commitment to make flexible working the default with employers required to accommodate this as far as is reasonable, has been watered down in the new Bill.
The other good news for employers is that the change is unlikely to be introduced until 2025. Until then, the government says it will consult about the requirements of the Bill, so we expect more detail in the next 12 months.
Discrimination risk
If you are dealing with a flexible working request, you need to be aware of the interaction between the request and the law protecting employees from discrimination. An employee whose request for flexible working has been rejected, may complain that they have been treated less favourably due to a protected characteristic such as gender/sex, race, disability or age.
In a recent case, the tribunal found the employer had complied with the law on flexible working, but that the rejection was indirect gender/sex discrimination. Employers therefore need to be aware of the wider implications of their flexible working decision.
Examples of the overlap are:
- a woman returning from maternity leave who requests a modification in working hours to accommodate nursey pick up times. If a business requires employees to work full time, this could disadvantage women who typically bear greater childcare responsibilities. This indirect sex discrimination is not unlawful if the practice or provision can be justified.
- a disabled employee who seeks "reasonable adjustments" to alleviate the effects of their disability on their ability to do their job. A "reasonable adjustment" could include changing their working hours to allow them to travel outside rush hour or allowing greater working from home, which employee may ask for by making a flexible working request.
- an employee making a flexible working request to change their working days to accommodate a holy day in their religion. This could give rise to a potential indirect religious discrimination claim if the request is refused, unless the employer can the requirement to work that day is a proportionate means of achieving a legitimate aim.
Our tips are:
- Explore thew flexible working request and see whether a compromise can be reached
- Consider a trial period – this gives an employer time to consider the impact of the arrangement on their business practices.
- Be consistent with how you treat flexible working requests across your workforce.
- Follow your flexible working policies and the requirements in the ACAS Code.
- Keep records of the reasoning behind the decision on the flexible working request.
- Be alive to the risk of a discrimination claim.
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.
