Quick Guide to Flexible Working

Flexible working is more popular than ever.

What is meant by flexible working?

Flexible working means any working arrangement other than working in the employer’s workplace all the time, during normal full time working hours.

Since the Covid pandemic gave “standard” working practices a good shake-up, there has been a lot of talk about flexible working.  Does it work? What does it mean to work flexibly? And so on.   Working flexibly covers any form of flexible working including working remotely, hybrid working, part time working, job share arrangements, term time only working – really anything you can think of.

What are the rules for flexible working requests?

The right to ask to work flexibly has been around for nearly 20 years now.  I remember that when it was first introduced it was often talked of as a Good Thing, but one which probably wouldn’t see much take-up, since we couldn’t see how many jobs could be done other than 9-5, Monday to Friday.  BlackBerries were still a novelty.  Employers often approached the right to ask to work flexibly on the basis that they could probably get themselves into one of the 8 statutory reasons to refuse, but they’d have ticked the diversity box on the way. It’s still important to remember that it’s only a right to ask, not a right to get.

Clearly there are many jobs that can’t be done remotely – personal care, for instance.  For simplicity, I’m concentrating here on jobs that would historically have been office based.  For full disclosure, I should probably also say that I’m pro flexible working; it’s worked for me to work part time for 8 years now, and to have the ability to work remotely when it makes sense for me to do so.

What do you say when applying for flexible working?

Currently, employees need to include various matters in a flexible working request:

• The date of the request
• The change requested
• When they’d like the change to start
• How they or the employer could deal with any effects the change could have on their work or on the organisation
• The date of any previous flexible working requests (as only one can be made every 12 months)
• If the change is regarding something covered by discrimination law, such as a reasonable adjustment for a disability
• It is also a good idea to go into how the change could be a good thing, or the benefits for the employer of agreeing the change, which (with care) could include going into what could happen if it’s rejected and their only option is to leave (but employees should get advice on how best to present this without damaging their position).

What are the reasons for rejecting a flexible working request?

Employers can only reject a flexible working request for certain specified reasons:

• Planned structural changes
• The burden of additional costs
• Quality or standards will suffer
• They won’t be able to recruit additional staff
• Performance will suffer
• They won’t be able to reorganise work among existing staff
• They will struggle to meet customer demand
• Lack of work during the periods the employee proposes to work.

If the employer decides to reject the flexible working request, they should provide an explanation of the relevant reason for the rejection, preferably in writing. Employees are entitled to appeal against a rejection of their flexible working request.

Employers must have good reason to refuse flexible working.

What are the proposed changes to the right to request flexible working?

The government has finally published its response to the consultation carried out in 2021.  There are several proposals and improvements, though perhaps not as much as employee groups were hoping.  In summary:

• The right to request flexible working will apply from day one of employment – this requires new Regulations, and no timeframe has been confirmed for when they will be in force.
• Better guidance will be introduced to raise awareness of the right to request temporary flexible working arrangements – the idea being that sometimes all that is needed is a short term, fairly informal arrangement to cover things like medical treatment, or to deal with unanticipated events.
• The government will also seek evidence regarding how informal flexible working works in practice – this seems to be intended to look at informal flexible working arrangements, including hybrid working, that have been put in place during/since the pandemic, but which may not have been formally documented. Strictly speaking, flexible working arrangements should be set out in writing if they involve a change to the individual’s contracted hours/days/place of work, but in many cases, arrangements to deal with lockdown rules were by necessity just “got on with” to get the job done.
• Businesses are to be pressed to consult with their employees to explore the options before rejecting a flexible working request – communication being always a good thing, this is to be welcomed. The question is whether the government will legislate for such consultation to include pre-employment discussions at interview/negotiation stage, or only going forward from “day one”.  I’ll come back to this below.
• Individuals will be able to make two applications in any 12-month period, rather than the current single application allowed.
• Employers will have to respond to applications within two months, rather than the current three-month period.
• Individuals will no longer have to set out how the effects of their flexible working request could be dealt with by the business – this is said to put undue pressure on those less able to articulate their position, and would in any event be difficult for job candidates to deal with when making an application at the recruitment stage.

The main gap I can see in the information we have from the consultation response document is that it isn’t clear how the “day one” right will operate.  The right not to suffer discrimination under the Equality Act 2010 is also a “day one” right – individuals have the right not to be discriminated against from the start of employment, and even beforehand in certain cases.  For instance, candidates may have the right to bring an Employment Tribunal claim if they are discriminated against (say, by not being offered a job because of a protected characteristic).

We don’t yet know exactly how (or if) this will be applied to flexible working requests made before starting work. Will candidates who make a flexible working request at the recruitment stage have a claim if their request is rejected?  How would a candidate make a flexible working request?  Would a discussion in an interview count?

As always with employment matters, whilst some questions have been answered, new questions present themselves and we wish for a crystal ball.

How to make or respond to a flexible working request

If you have any queries about flexible working, or how best to approach making or responding to a flexible working request, please contact us on 03300 020 863 or employment@qlaw.co.uk.

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