It will become a day one right

The government has previously announced, but not yet set out a timetable, for changes to the right to request flexible working procedure.

Employees currently need 26 weeks' service to be entitled to request flexible working. The Government proposes to remove this service qualification, making the right to request flexible working a "day one right".  Currently, an employee may make one statutory request every 12 months and an employer has three-months to consider whether that request can be accommodated.  The Government is consulting on whether these limitations need to be changed - so watch this space!

More and more job adverts now include whether the role is remote and recent job postings I have seen begin with defining what flexibility is available at the outset. In one recent example I saw the advert started with this opening statement: ‘We support hybrid and flexible ways of working and would welcome a discussion on how we can enable you to thrive in your role’. This is reaching out to as many potential applicants as possible, who can see that they are able to work flexibly and not have to prove themselves before requesting flexible working.

Impact on small businesses

When you have a small team, it can be harder to accommodate flexible working requests. The practicalities of managing the impact will be more significant to a business who only employs 1 employee per job rather than a business who has a team of 6 all carrying out the same role.

Some obvious solutions to accommodate a flexible working request are to create a job share or recruit for the gap this leaves. This can sometimes add more cost, if for instance in a job share you need both employees to be working at the same time at some point for a handover. So instead of hiring 2 people to make up a full-time role, you end up with 1.2 full time equivalents. But also consider that if someone’s flexible working request cannot be accommodated, they may have no alternative but to leave the business. You are then faced with the costs of recruiting a replacement, overtime and temporary staff costs and risk demotivating others while a role is open.

It can be a difficult decision to make and depending on the outcome you will need to consider if some additional cost outweighs the direct and indirect cost of losing an employee.

The Request

When an employee makes a request, this needs to be made in writing and include:

• The date of application for flexible working
• The effective date to start flexible working
• Detail the change that is requested
• Explain the effects that the employee thinks the proposed change would have on the business and how any such effects might be dealt with
• State whether the employee has made a previous application for flexible working and if so the date of that application

So, what do employees want when they make a flexible working request, they might ask to:

• reduce their hours to work part time
• change their start and finish time
• have flexibility with their start and finish times (sometimes known as 'flexitime')
• do their hours over fewer days ('compressed hours')
• work from home or elsewhere ('remote working'), all or part of the time
• share the job with someone else

You should consider the request carefully looking at the benefits of the requested changes for the employee and your business and weigh these against any adverse business impact of implementing the changes.

Don’t forget the process

Employers must look at flexible working requests fairly and follow the ACAS Code of Practice on flexible working requests and make a decision within a maximum of three-months.

Once you have received the written request, you must consider it and deal with it in a reasonable manner.

• You should arrange to talk with your employee as soon as possible, if you intend to approve the request then a meeting is not needed
• Arrange a meeting as soon as possible and allow the employee to be accompanied
• Discuss the request, to get a better idea of the changes and how they might benefit your business and the employee
• Following the meeting consider the request carefully looking at the benefits of the requested changes in working conditions for the employee and your business and weighing these against any adverse business impact of implementing the changes
• Once you have reached a decision confirm this to the employee in writing asap – don’t forget the law requires that requests are dealt with in a three-month timeframe, this includes any appeal process that may follow. 
• Your options here are:
• Accept the request – after you have confirmed the outcome, make sure you also write to the employee to confirm their change to terms and conditions as the request may impact pay and holiday entitlement.
• Accept the request with modifications – discuss this with the employee and how best they can be implemented.
• Reject the request – this must be for one of the following business reasons:
• the burden of additional costs
• an inability to reorganise work amongst existing staff
• an inability to recruit additional staff
• a detrimental impact on quality
• a detrimental impact on performance
• a detrimental effect on ability to meet customer demand
• insufficient work for the periods the employee proposes to work
• a planned structural change to your business
• If you reject the request, you should allow your employee to appeal the decision. 

Trial it!

So, you can see the benefits of a flexible working request for the employee and the business, but you have reservations about taking the plunge and accepting this request because you think others within the business will consider flexible working and this will just become an administration burden for you! Well, I’m sorry to say that flexible working requests will not go away there will always be a point in someone’s life when they may consider flexible working, whether that’s caring for a child, an elderly parent, taking on a new pet or even to winding down to retirement. 

My advice is trial it! What have you got to lose? If you trial it and it doesn’t work, at least you can be satisfied that you have explored the request and if you receive an appeal, you have evidence to support your decision if you have declined the request.

Employers can agree to try a flexible working pattern on a trial basis [although they are not obliged to offer a trial period]. The duration of any trial should be set out in writing and the trial should be reviewed regularly throughout the trial period. Where you are offering a trial period, you should extend the three-month time frame for considering flexible working requests, ensure you obtain the employees agreement to this and confirm this agreement in writing.

If you need support with dealing with a flexible working request schedule a call with me today.