Flexible working is a term that has attracted many different connotations over the past 10 years, now more than ever this term is frequently misused and seemingly confused with the incoming ‘hybrid working’ models. In this blog we thought it would be helpful to explore the legal definition and criteria of flexible working together with the legal requirements.
The pandemic has resulted in UK workplaces facing many challenges and equally unique opportunities to rethink their business models over the 18 months. Whilst some businesses and workforces have thrived in complete home working, clearly many others are on their knees and universal home working cannot be a sustainable option for businesses or their employees. There is an opportunity for employers to do more to provide flexibility for the benefit of all employees and organisations. However, there is a danger that businesses are confusing flexible working with hybrid and remote working, they are very different things.
What is flexible working?
All employees have a legal right to request flexible working. ‘Flexible working’ describes a type of working arrangement which gives a degree of flexibility on how long, where, when and at what times employees work. For example:
- Flexible working hours, meaning changing the start and finish times for your employee.
- Further flexi-hours, such as making their lunch breaks 30 minutes instead of an hour, so they can leave work early to collect their kids from school.
- Moving from full-time to part-time work.
- Job sharing, with two employees working across on full-time role.
- Term-time working, with staff taking time off with/without pay during a school summer holiday.
What isn’t flexible working?
Remote working or hybrid working – these are terms that are not covered by the specific flexible working laws. To put it simply, remote work is work that is done outside of a physical office and hybrid working allows employees to split their time between attending the workplace and working remotely (typically from home). Whilst these should have processes in place to regulate and ‘approve’ (in most situations), these are entirely different policies and processes to flexible working.
How does flexible working work?
A flexible working request is a change of contract terms and conditions, so a statutory application must be submitted. The employee should submit the following information so that the employer can decide whether to accept or reject it:
- details of the change they are asking for;
- what effect they think the change could have on the business, and how the business could handle it;
- the date the request is made, and the date they would like the change to start;
- a statement that this is a statutory request for flexible working, whether they have made a request previously, and if so its date.
By law, to have flexible working rights, the staff member must have 26 weeks’ continuous employment, legally classed as an employee and hasn’t made a statutory request in 12 months.
Further flexible working legislation can be found on the gov.uk website.
What are the benefits to flexible working?
- It can create a more diverse and inclusive culture.
- Flexible working patterns may attract employees to your business. Having a flexible approach will also help you to retain existing staff.
- It can help to reduce employee turnover.
- It may boost employee morale and commitment.
- The introduction of more flexible working arrangements can reduce absenteeism.
- It has been proven that flexible working provisions can lead to noticeable improvements in employee productivity.
What you need to do
As a business, you can choose to offer right to request for flexible working. Acas publishes a code of practice on handling requests. Although you are not required to follow the code of practice, failure to do so will be considered if the employee complains to an employment tribunal. You can negotiate with the employee to agree changes to what they are proposing, or you can refuse an application to work flexibly only if there is a clear business reason to do so (following the outlined rationale). You must consider the employee rights to apply and we suggest that you give your answers in writing and provide timeframes and review dates if a trial is agreed upon.
Make sure your contracts are up to date
Once you have accepted a request for flexible working you will need to amend the employee’s contract of employment to incorporate the change. You may need to amend the employee’s pay and holiday entitlement, for example, if the new arrangement changes the number of hours worked.
Employment legislation for flexible working
The employee is protected against dismissal or constructive dismissal in respect of their request.
Under the flexible working rights:
- you must not dismiss an employee or treat them less favourably because they have applied to work flexibly or made a complaint to an employment tribunal, or because they intend to;
- in such a case, the 12-month qualifying period of employment is waived and dismissal will be classed as automatically unfair.
When considering flexible working requests, make sure this does not amount to discrimination. Working time and minimum wage regulations still apply and employees can also take other paid and unpaid time off.
It’s important to differentiate the differences between flexible working requests from remote or hybrid working requests and arrangements. Part of the process is to educate teams around the differences and be clear on how your business will operate moving forward. So here are a few points to consider:
- Ensure that genuine flexible working requests are dealt with in accordance with the relevant legal requirements
- If you are unclear as to whether a request is a flexible working request or a hybrid working request, ask the employee
- Have clear terminology when introducing new working norms such as remote and/or hybrid working
- Set clear expectations on whether a change is permanent
- Look at your workforce forecasting to ensure that workloads are measured and decisions are reached fairly (so important)
- Complete regular reviews to manage productivity
- Manage your values no matter how, when or where your employees are working.
When looking at remote and hybrid working – whilst ‘blanket’ policies of either returning to the office or keeping everyone at home might seem more straightforward and less costly, there are significant risks of not retaining staff and dealing with dissatisfaction amongst employees who remain as we continue out of lockdown. Taking some time to consider alternatives and gain input and preferences from employees is likely to be a worthwhile investment.
If you have any questions or concerns about flexible working, then please get in touch with a member of the ViewHR team today for an initial discussion: email@example.com or call 01425 205390.