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Flexible working – is it still working?

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In a recent survey by the Chartered Institute of Personal Development (CIPD), it was revealed 83% of organisations have hybrid working in place. Yet despite this, less than half feel comfortable requesting a formal flexible working pattern. Kimberley Clayton, Solicitor at Ellisons Solicitors, who advises many employers on their flexible working duties, gives key insight into what employers need to consider.

What is the background?

According to latest figures, 83% of organisations have hybrid working in place – 45% have a formal policy, 24% take an informal approach, and 13% are developing policies through learning/trialling.

Hybrid workers divide their working time between home (or another remote location) and their place of work. This differs from homeworkers who work exclusively at home. In 2022, the Advisory, Conciliation and Arbitration Service (Acas) published findings of a hybrid working survey 60% of employers surveyed had seen hybrid working increase following the COVID-19 pandemic, and 52% had seen an increase in staff working from home full-time.

A business with employees working in a hybrid or homeworking arrangement will need to consider a range of legal and practical issues, such as adapting their standard employment contract clauses to include hybrid working or homeworking, and introducing new policies or reviewing existing policies to set out the arrangements and conditions for hybrid working or homeworking.

What rights do employees have?

Currently, employees with at least 26 weeks of continuous employment can make a request for flexible working for any reason.

An employee can make one flexible working request in any 12-month period and the changes they can apply for include the hours they work, the times they are required to work and their place of work.

The employee starts the procedure simply by making a written request. Their employer then has three months to consider the request, discuss it with the employee and notify the employee of their decision.

There is a requirement for the employer to deal with the request in a reasonable manner, and they can only refuse a flexible working request for eligibility reasons or for one (or more) of eight prescribed reasons. These include that the work cannot be given to another member of staff to carry out, or that the business would incur extra costs by granting the request.

If an employer fails to follow this procedure, then the employee can bring a claim to the Employment Tribunal.

Changes on the horizon

On the 20th of July 2023, the Employment Relations (Flexible Working) Bill received Royal Assent. When it comes into force, which the government expects to be in about 12 months’ time, the following changes to the current regime will apply:-

  • When making a request, an employee will no longer have to explain what effect, if any, the employee thinks their requested change would have on the employer and how any such effect might be dealt with.
  • An employee will be entitled to make two requests in any 12-month period.
  • An employer will not be permitted to refuse a request unless the employee has been consulted.
  • The time for an employer to make a decision will be reduced from three to two months (although it will remain open for the parties to agree to a longer period). When it announced that the Bill was to receive Royal Assent, the government referred to the right to request flexible working becoming a “day one” right.
  • The current requirement for an employee to have at least 26 weeks of continuous employment by the date of a request will be removed by secondary legislation.
  • Update ACAS Guidance will be published.
  • As is currently the case – the right is to make a request, not a right to be afforded flexible working.

Guidance for employers regarding hybrid working

Sixty-six per cent of employees say their employer is supportive of flexible working, with around a fifth (21%) saying they are unsupportive. However, despite that fairly high level of support, only 47% would feel comfortable requesting a formal flexible working pattern (with 28% feeling uncomfortable) and 53% would feel comfortable requesting informal flexible working (with 21% feeling uncomfortable).

Ultimately, there is no automatic right for employees to work from home or another remote location. However, employees with 26 weeks of continuous service can apply for flexible working, and making an application for hybrid working can form part of a request for flexible working arrangements under the statutory scheme.

Acas has provided useful guidance for employers who are thinking about hybrid working for their organisation and this includes considering where, when and how the work can be done. Acas has also published the following advice to employers:

Hybrid working policies should explain how hybrid working can be requested, how job roles are assessed and how decisions will be made.

Remote staff should have access to the same opportunities such as team building, training and social activities as those in the workplace.

Transparency and fairness are important when deciding whether to approve staff requests for hybrid working, and other forms of flexible working can be discussed as possible alternatives.

Acas recognises that employers may need to have different arrangements depending on the role and needs of their employees, and a trial period to test hybrid working and establish any necessary adjustments may be helpful.

High trust culture gets results

Several workplace studies conducted by companies that survey thousands of employees across industries have found a link between a high-trust culture and increases in productivity, job satisfaction and employee retention. This highlights the importance of employers building and maintaining trust with the employees in their organisation, and particularly since the COVID-19 pandemic and the shift towards some level of hybrid working.

If you have any questions about making an application for flexible working or need advice on how to deal with an employee’s request under the statutory scheme then please do not hesitate to contact a member of Ellisons’ Employment Team.

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