In September 2021, the UK government’s consultation document ‘Making Flexible Working the Default’ stated that:
‘A world-class approach to flexible working is a key part of the government’s ambition…This means focusing on all forms of flexibility – when you work as well as where you work – freeing employers and employees alike from the default 9-5 model in order to recruit and retain the talent we need.’
This direction of travel seems consistent with the intentions of many employers and the aspirations of most employees. The consultation quoted figures suggesting that:
- 74% of company directors intend to increase homeworking (from pre-pandemic levels) and 43% intend to increase other forms of flexible working; and
- 87% of individuals want to work flexibly, rising to 92% for young people.
The consultation outcome is still to be announced, however, is flexible working likely to become ‘the default’? What should employers consider when planning their own approach?
Currently, an employee can request flexible working to change the number of hours or times they work. They can also request home or hybrid working or, if they currently work from home, to work from their employer’s premises. In practice, flexible working encompasses a huge range of options.
Benefits for employees
Often, employees seek flexible working to allow them to care for children or elderly relatives, to manage personal health issues, or practise their religion.
Increasingly, however, it appears to be finding favour with the wider workforce. It can allow employees to pursue hobbies, wind down before retirement, reduce their commute, or simply work at times that best suit them.
Regardless of the drivers, many employees report improved job satisfaction and wellbeing.
Benefits for employers
Against the backdrop of keen employee interest in flexible working, employers who embrace it are likely to fare better in terms of recruitment, retention and reputation.
Workforce diversity, particularly regarding gender, disability and age, is likely to improve.
A positive impact on productivity is possible, if oft-cited benefits such as more committed employees and fewer absences materialise.
For some organisations, homeworking could reduce overheads or form part of an environmental sustainability strategy.
Will we be able to refuse requests in the future?
The government has said that it intends to ‘make flexible working the default’, but this comes with a sizeable caveat: ‘unless employers have good reasons not to’. The consultation confirms that there is no plan to move to a ‘right to work flexibly’; instead, as is the case now, employees will only have a ‘right to request’.
For most employers, there are limits on how far they can stretch in accommodating requests. Where those limits land might depend on workflow, customer demand, the need for teamwork or supervision, health and safety, or other reasons.
Currently, employers can refuse flexible working for certain ‘business reasons’, such as cost or a detrimental impact on performance. The government has consulted on whether these reasons remain valid, and it may amend them. However, it is unlikely that any amends will make a significant difference in practice, and employers will essentially still be able to refuse requests if they have a ‘good business reason’.
That said, employers should consider requests in light of their experiences during the Covid-19 pandemic. If certain forms of flexibility didn’t impact negatively on the business then, it could be difficult to claim that they would now.
What if we can’t accommodate everyone?
The prospect of not being able to accommodate all flexible working applications is a common concern.
There is no obvious pecking order. For example, an application to accommodate childcare won’t automatically take priority over one related to a disability, or even from someone who would have no grounds for a discrimination claim if their request was refused. That said, weighing up discrimination risks should always be part of the decision-making process.
By looking at the business case and individual circumstances of each application separately, it may be possible to find appropriate distinguishing factors or compromises. Some employers operate a ‘first come, first served’ approach or ‘waiting lists’ but these options might not always be appropriate.
Refusing flexible working: risks
While there is the prospect of missing out on the potential business benefits of flexible working, in some cases a more immediate concern might be losing an employee. Some employees feel compelled to leave paid employment to accommodate their needs; and others seek flexibility via zero-hours’ contracts or the gig economy. However, if flexible working becomes more widespread, it may be easier for employees to find comparable, but flexible, employment elsewhere.
If employees stay, there may be a negative impact on relationships and motivation.
Then there is the risk of employment tribunal claims. If the statutory scheme is breached, a tribunal can order an employer to reconsider the request and/or pay compensation of up to eight weeks’ pay (currently capped at £544 per week). In addition, employees may claim constructive unfair dismissal and/or discrimination, which could be far more costly.
Alternatives and trials
The government has consulted on whether employers who reject requests should need to confirm that they have considered alternatives, such as a temporary change, different working pattern, or partial acceptance of the request. This approach, along with using trial periods in situations where the impact of a proposal is unclear, will be familiar territory for some employers.
Embracing flexible working
Managing flexible working requests is just one piece of the jigsaw. Despite legal protections for part-time workers, many continue to report negative career consequences. Promoting a flexible working culture could therefore also mean reviewing benefits, training, work allocation, team communication and promotion opportunities.
The government does not intend to proceed with an earlier proposal that job adverts should confirm whether they are open to flexible working. Despite this, it’s an approach worth considering, along with reviewing job descriptions and working arrangements before advertising posts. The government is proposing that the right to request flexible working will become a ‘day one’ right (rather than applying after 26 weeks’ service), meaning conversations about flexibility could arise earlier in the employment relationship in any event.
The Covid-19 pandemic opened the eyes of employers and employees to new ways of working. Regardless of how far any new legislation goes, if employers want to remain competitive in the market for employee talent and embrace the potential benefits of flexible working, now probably isn’t the time to close them again.