What’s the current position on flexible working rights?
On 5 December 2022, the Government announced that the right to request flexible working will be extended to all employees from day one of employment eliminating the requirement to have 26 week’s service. This is part of a package of measures under the Employment Relations (Flexible Working) Bill ‘making flexible working the default position’ which is hoped will promote a greater level of flexibility for the UK workforce. Other measures include the right to make two flexible working requests within a 12-month period and a reduction in the maximum time for an employer to respond to a request from 3 months to 2 months.
Flexible working can lead to increased productivity, a happier workforce and lead to great equality in the workplace along with the retention of key talent. However, if an employer mishandles a flexible working request by failing to provide sufficient reasons it can result in formal grievances, tribunal claims and the loss of valuable talent. There are of course always requests that cannot be accepted and the legislation allows for this by setting out eight statutory reasons for rejecting a request, but many employers still refuse requests without reference to these statutory grounds. Often an employer will simply tell an employee that there request has been refused because, ‘It could be seen as unfair on those working full-time’. This is of course a breach of the regulations and is likely to give rise to a tribunal claim for constructive dismissal and indirect sex discrimination. It also suggests to the workforce that their employer is closed to flexible working requests and will inevitably lead to staff departing for better opportunities elsewhere.
How should an employer handle a flexible working request?
An employer should give careful thought to how they approach flexible working requests because a one size fits all policy is unlikely to work and reduce the risk of a legal claim.
As a minimum we would suggest that guidance is given to the employee about how the written request is put together and the points it should cover. A meeting should then take place with the employee to consider their request. A written decision should then be prepared by their line-manager and another meeting held to go through it with them. Finally, all line-manager’s expected to handle these requests should be given specific training on how to follow the process and prepare the written decision.