Legal view: The new flexible working rules

Flexible working is here to stay, with new rules introduced from April set to spark a rise in employee requests. Employers are being urged to be ready to respond.

Recent research has indicated the direction of travel that began following the pandemic is continuing. A survey of UK workers carried out by recruitment specialists last October revealed almost half would reject a new job if the company didn’t offer flexible working.

Added to that, three in 10 employers have seen a rise in staff working from home over the past 12 months, according to a poll by employment advisory body Acas.

Experts are now predicting that the changes to the flexible working regime coming into play in the spring will create new challenges for employers.

These new working regulations will give employees the right to request flexible working from day one of their employment. Under the current law, workers have to have been employed for at least 26 weeks before making such a request.

Flexible working is a wide-ranging phrase. It can refer to working patterns or hours, including part time, flexi-time, term time, compressed hours and adjusting start and finish times. And it can also be the subject of employment location, such as working from home.

The new working regulations are part of wider changes expected to come into force in April. They will require employers to consult with the employee when they make a flexible working request.

They must agree to the request unless there is a ‘genuine business reason’ not to.

Reasons include the burden of additional costs, an inability to reorganise work among existing staff or to recruit additional staff, and the move having a detrimental impact on quality, performance or ability to meet customer demand.

The time employers have to respond to a request will be reduced to two months, from the three months allowed under current rules.

Employees will also be able to make two requests within a 12-month period, compared to the single application they are currently allowed. Sally Eastwood, associate partner at law firm Farleys, says employers need to be aware of these changes.

She warns: “In addition to the procedural requirements under the Employment Rights Act, there is a significant risk of discrimination claims where flexible working requests are mishandled.”

HR experts say businesses should be braced for a rise in requests for flexible working and should review their current policies in advance of the new regulations.

That includes putting in place effective processes to review and respond to applications promptly.

Acas has produced a new statutory code of practice to support employers and employees through the changes. It is currently awaiting parliamentary approval.

The organisation’s chief executive Susan Clews says: “There has been a global shift to flexible working following the pandemic and it is clear from our poll that there’s a continued appetite among staff and employers.

“Some businesses have benefited by reducing office costs as well as attracting the best talent. Staff can find flexible working valuable to better balance their working lives.”

Experts say there are other positives to taking the hybrid approach, which mixes remote working with time in the workplace. It can also help with recruitment.

Laura Hartley, founder of LHR Recruitment and Retention agency, says: “We are seeing more people putting flexible or hybrid working as essential when looking for a new opportunity.

“With companies looking to bring the teams back in to the office five days a week, candidates are now looking to move.

“The cost-of-living crisis and the extra travel time are reasons candidates give for looking for hybrid working.

“Companies should give this request some thought and look at it strategically to ensure a balance between employee satisfaction and organisational needs.

“Firstly, it’s crucial to establish clear guidelines and policies regarding flexible work arrangements, not just for new recruits but also to retain the existing employees. Update your policies and procedures so everyone is clear.

“There must be a fair and consistent evaluation process for flexible working requests. “Consider the nature of the employee’s role, the impact on team dynamics, and the organisation’s overall objectives. It’s essential to evaluate each request individually and avoid a one-size-fits-all approach.

“Engage in open communication with employees to discuss potential challenges and find mutually beneficial solutions. They might have a better solution than you just saying ‘no’.”

Sharlene Spence, of Cube HR, adds: “Studies have proven that organisations that have hybrid working as an option have increased productivity, due to having autonomy and flexibility within their roles.”

However, she stresses that strong communication is vital in making such an approach work. Sharlene says: “Establish guidelines for communication channels, response times and meeting schedules.

“Also, have clear policies and expectations regarding hybrid working. You might also want to set in place some rules in your contract or policies about how often hybrid workers are expected to come into the office.

“Establish a fair and transparent process for dealing with flexible working requests but remember the rules on flexible working are changing in April so you may need to adjust your policy, then clearly communicate the criteria and decision-making process to employees.

“Consider each request on an individual basis taking into account the role of the employee and the feasibility or impact it will have on the team or organisation.

“There are only eight legal reasons you can refuse a flexible working request, so it’s important to explore pros and cons in full before making your decision.”

When it comes to hybrid working, it is important employees have the right tech and tools to support them when working remotely.

She adds: “Set out clear performance metrics that each employee is aware of that align with your organisation’s goals. Regularly review and provide feedback on performance, especially highlighting results.

“It is very important to have an inclusive culture that values both in-office and at-home working contributions. Encouraging team-building activities that incorporate both remote and office workers will help build a strong culture.

“Providing training on hybrid working best practices will be beneficial for all employees they will then have a clear understanding of what is expected of them.”

But what of organisations looking to get more of their people back into the workplace rather than working from home? How do they go about making the move?

Laura says: “If the company decides to transition back to a more office-centric model, addressing the issue of getting people back into the workplace requires a gradual and empathetic approach.

“Provide clear communication about the reasons for the shift, emphasise the benefits of in-person collaboration, and offer support for the transition. Implementing flexible hybrid models can help ease the return to the workplace by providing a balance between in-office and remote work.”

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