The right to request flexible working is set to become a day-one right from April. The Flexible Working (Amendment) Regulations 2023 have been laid before Parliament and will remove the requirement that an employee must have 26 weeks’ service in order to be able to make a request for flexible working. The new right will come into effect for flexible working requests made on or after 6 April 2024.
This comes as no surprise. As far back as 2022, the government indicated their intention to make this change but it didn’t appear among the other changes to the statutory flexible working regime included in the Employment Relations (Flexible Working) Act 2023 published earlier this year. We still don’t know the date the Act will take effect but it’s likely to be in April, the same time as the day one right comes into effect.
A reminder. The Act will introduce 4 main changes to the flexible working regime. So, it will:
- Allow employees to make two flexible working applications every 12 months
- Remove the requirement for employees to explain what effect they think their flexible working request will have on the employer
- Require employers to consult with the employee before refusing their flexible working application; and
- Require employers to respond to flexible working requests within 2 months
Meanwhile, Acas has announced that a final version of its updated statutory Code of Practice on handling requests for flexible working will be published in 2024. The updated Code, which follows on from a consultation in 2023, aims to strengthen good practice on flexible working and addresses upcoming changes to the flexible working regime. It will cover information on who should be permitted to accompany an employee to meetings to discuss a flexible working request, as well as the necessity for clarity regarding the reasons for rejecting a request.
People Management covers this and calls on HR professionals to take this as an opportunity to ‘embrace a shift in workplace dynamics.’ They quote Elizabeth Willetts, founder and director of Investing in Women, a flexible jobs platform. She says: “It’s not just about complying with the law but embracing a shift in workplace dynamics that can lead to increased employee engagement, retention and a wider talent pool.” She goes on: “Businesses need to think about the “broader implications of flexible working for their organisational culture. This includes investing in technology that supports remote or hybrid work, redesigning workspaces to accommodate flexible schedules and fostering a culture where output and results are valued over traditional working hours.” With an eye on the talent war, the article encourages HR professionals to “clearly communicate” the level of flexibility they can offer in job adverts, such as remote working or hybrid working.
We broadly agree with those views, but we would emphasise a key point for HR to understand in this context, namely, that there is an important difference between hybrid and flexible working. So, although the two are referred to almost interchangeably in the press, they are, conceptually, very different. Earlier I caught up with Anne Sammon to discuss the difference and why it matters:
Anne Sammon: “So, I think, first of all, it's really important to say that the two concepts are conceptually very different. Hybrid working is all about employers having flexibility and saying to employees we want you to work perhaps a minimum of this number of days in the office, or we're happy for you to work this number of days at home, and allowing a lot of flexibility whereas a flexible working request is a statutory right, although some employers will have extended the statutory right beyond just what the limits of the statute says, but a flexible working request is something that is almost set in stone, doesn't change, is forevermore and tends to be written very particularly from a legal perspective. So it tends to be things like, you have the right to work from home on a Wednesday, or a Thursday, whatever day it is. Contrast that to a flexible working policy, or a right to work from a hybrid perspective, and that will say something like you can work two days a week from home, so that they're very different and they have very different consequences.”
Joe Glavina: “So if an individual wants to change their working pattern does that mean their contract of employment needs to change?”
Anne Sammon: “So I think it all depends on what your employment contract wording already says. Many employment contracts that we've been looking at have got almost a built-in flexibility in terms of location of work. So they will say things like your place of work is the company's offices, or such other locations as the company made determine as appropriate from time to time and with that type of flexibility the company can say, well, you can work from home. If you've got a very definite instruction that you must work from the company's offices that’s where you need to start thinking about whether there's a requirement to make a contractual change. Now, one of the things with hybrid working, what we've seen from a lot of clients, is that they want to have a kind of let's try it and see approach rather than embedding this forevermore so many organisations are thinking, well, at the moment we're happy for people to work maybe two days a week from home, but we don't know what the situation might be in a year, in five years, and therefore they want that flexibility to be able to change it on a more ad hoc basis and if you build that into the contract, and say, you can work from home two days a week, in order to then change that, that's a contractual change with all the implications that come alongside that. So what we've tended to see is many employers wanting to stay away from hybrid working being a contractual policy so that they can at least argue that if in the future they need to change it and say, actually, this isn't working, we don't think there's the kind of levels of collaboration, for example, that we're expecting, and therefore we want you all to be in the office four days a week, instead of the three days a week, there's that ability to do that.”
Joe Glavina: “So with hybrid working, does it make sense for employers to offer a trial period with, perhaps, a review at the end, as we often see with flexible working requests?”
Anne Sammon: “I think the difference with hybrid working is because there's that flexibility is difficult to see what a trial might look like. So what you tend to see with a hybrid working policy is that very kind of high level you can, with the agreement of your manager, decide which days you're going to work from home. I think if somebody is doing fixed particular days at home then a manager might say, well, let's see how this goes and essentially build in a trial period whereas actually where there's flexibility on both sides, you might decide that it's not actually appropriate because if both sides are willing to be flexible then that means that you probably will be able to tweak around the edges and see what works and what doesn't.”
Joe Glavina: “So what’s your key message to HR, Anne?”
Anne Sammon: “I think the key thing that I see as being the difference is that hybrid working is all about giving the organisation and the individual flexibility whereas flexible working, rather conversely, tends to be about giving the individuals and the organisation certainty. So if you think about them in those two different ways, hybrid working will allow you to give direction as to working in a particular pattern, for example the two days a week from the office, whereas flexible working requests tend to be more around I want to do this particular thing forevermore and these are the particular hours and days that I want to be set out in stone. I think what we are seeing at the moment is a lot of clients where they've implemented hybrid working policies and employees, because of childcare reasons for example, want certainty. So if you're an employer and you've said everyone can work from home two days a week, and you're an employee and you need to work from home on, say, a Monday and a Friday, that hybrid working policy doesn't necessarily get you what you want and so then you might put in a flexible working request and say, yes, I'm happy to work two days a week from home but I want those days to be Monday and Friday and I don't want them to ever change.”
That People Management article is called ‘New flexible working laws: an employer’s guide’ and we’ve put a link to it in the transcript of this programme.
LINKS
- Link to People Management article: ‘New flexible working laws: an employer’s guide’
