Merit in making flexible working changes ahead of new laws, says lawyer

As you may have seen in the news, the government has published its response to its consultation on reforming the flexible working regulations designed to modernise existing law. They want to expand the scope of the current regime but stop short of radical reform. 

The headline change is making the right to request flexible working a day one right, removing the current 26-week qualifying period. That is a change that has widespread support - 91% of respondents were in favour, with most of them saying they consider flexible working requests from day one anyway. Other measures include:

- a new requirement for employers to consult with their employee when intending to decline the request for flexible working
- allowing employees to make two flexible working requests in any 12-month period, rather than only one as currently allowed
- reducing the time limit for an employer to respond to a flexible working request from three to two months, and
- removing the requirement for employees to detail the effects of their flexible working request on the employer and to include ways on how it might be dealt with

The reforms are welcomed by the CIPD who have actively campaigned on this for more than a year. People Management covers the news extensively in two main articles on what employers need to know and whether the bill can solve existing issues. There are some interesting views from a number of experts, including HR professionals and employment lawyers, so let’s hear from one of our own. Anne Sammon has reviewed the bill and earlier she joined me by video-link to discuss it. I started with one of the issues flagged in one of the articles – whether employers should wait for the bill to become law before taking action:

Anne Sammon: “I think if I was an employer, I'd be considering implementing this now rather than waiting for the legislation and part of that is because this is just a right for someone to request flexible working. So, where you've got a genuine business reason for not being able to accommodate that, you're able to still reject the request and as well as, obviously, the right to request flexible working, we've also got other protection like indirect sex discrimination. So, if you were to refuse a woman's flexible working request, even if she doesn't have the statutory right to make one, and that's connected with her inability to, maybe, combine work and her childcare requirements, that of itself could potentially be discriminatory. So, I think facing into this now and thinking about how you might implement it within your own organisation in advance of the legislation coming in is quite a sensible idea.”

Joe Glavina: “One of the articles quotes an HR professional warning employers that if they introduce the bill now, they’ll likely form a contractual entitlement that must be adhered to. Do you agree with that?”

Anne Sammon: “I'm not sure that I agree that a right to request flexible working is necessarily a contractual right. We see lots of policies that are worded in such a way as to make it very clear that they're non-contractual and might be changed over time. But again, I think the other really key thing is that this is just a right to request and, therefore, if an employee were to put in a request that doesn't work from a business's perspective, the business can reject it, and they will always have been able to, so it’s not that significant a right that should have a really adverse impact on lots of employers.”

Joe Glavina: “One of the articles quotes an employment lawyer called Yvonne Gallagher and she refers to the ability in the bill to apply twice in a 12-month period for a change to working arrangements, and she says HR departments may therefore have to deal with a greater volume of requests. Do you agree with that?

Anne Sammon: “I’m not sure it necessarily follows that just because an employee has got the right to put in two requests in any 12 month period that lots of them will do. I think it depends on how you deal with those flexible working requests. If you grant someone's flexible working request, my experience is that they don't tend to put in another request for several years down the line when their circumstances have changed. So, I think it would be unusual for somebody to put in one request in 12 months, and a second request if their first request has been accepted. Part of that, as well, would depend on, when you're rejecting a request, what's the rationale that you give to the employee and is it a sensible and coherent one because, again, if you've said to somebody that, for example, a role can't be done on a three day per week basis, it's unlikely that they'd put in a second request for the same thing if you've properly explained why it's not appropriate, or why it can't be done. So, I think some of this will depend on how employers go about their communication exercise where they are rejecting a request and kind of making sure that they take the employee on that journey so that they really understand what is and isn't possible in the particular role that they're undertaking.”

Anne and the team have written about this in some detail in their Out-Law article which was published shortly after the bill came out. That’s: ‘New flexible working rights good news for employees’ and is available now from the Out-Law website. We’ve put a link to it in the transcript of this programme.

LINKS
- Link to Out-Law article: ‘New flexible working rights good news for employees’