Preparing your business for flexible working law changes

What's on the legislative agenda for flexible working and how can businesses prepare for potential changes, such as flexible working becoming a day one right?

HR professional Gemma Dale, who is the author of the book 'Flexible Working: How to Implement Flexibility in the Workplace to Improve Employee and Business Performance', shares her thoughts on the potential changes and how businesses can adapt effectively.

The Government has launched a new consultation into the current law on flexible working. During the pandemic, homeworking came to the forefront – but other forms of flexible working have declined over the same period.

There has always been a strong desire from employees to work flexibly, but not everyone is able to get access to the form of flexible working that they want or need. In fact, before the pandemic, the progression of flexible working was described by the CIPD as ‘glacial’. Now the future of flex is firmly on the agenda – and legislation changes might be too.

Possible flexible working legislation changes

The Government consultation opened in September and will continue until the end of December. Employers who want to contribute their opinions can do so. After the consultation closes, the Government will need to consider responses and determine what (if any) aspects of the legislation need to change – so we have a little while to wait to find out just what employers need to do in response.

Flexible working as a day one right

One change that is likely to be included in revised legislation relates to the qualifying period for making a formal request for flexible working, with plans to make it a day one right.

Under the current legislation, an employee needs 26 weeks of continuous service with their employer before they can ask to work flexibly. This can present a barrier to flexible working access – in fact, the Government estimates this waiting period means that 2.2 million people currently cannot make a request for flexible working.

Some employers have already made this change in their own internal policies, but a legislation change will still mean an update to policies and processes for many.

Flexible working becoming the default

Though the government are referring to potential legislative changes as moving towards the 'default’ right to work flexibly in their consultation, this may well be overstating the possible changes.

As with the current legislation, we expect that employees will still only have a right to request flexible working, and not necessarily to have that request accepted. There could, however, be changes to how requests are handled – and the reasons for which employers can refuse requests.

Currently, there are a list of statutory reasons that an employer can use to turn down a flexible working request. These include planned organisational change, operational reasons, and that the organisation might incur additional costs if a request was accepted. The consultation is specifically considering whether this list is still fit for purpose or if changes should be made here too.

Also under consideration are the following:

• Whether employees should be allowed to make more than one flexible working request a year.
• Introducing a process through which employees can make requests for temporary or short-term flexible working rather than a permanent contractual change.
• Whether employers should be required to propose alternative working arrangements where they cannot accept a request for flexible working.

Preparing for flexible working change

As there is no certainty yet about what changes will be made to the current flexible working legislation, there is no requirement for employers to take immediate steps – legally at least. However, the current demand for more flexible working, especially the opportunity to work from home, means that employers may want to think about their current approaches and policies to identify whether they are positioned to support employee engagement and the attraction and retention of talent.

The Government has stopped short of making any proposals about including flexible working opportunities in recruitment advertisements or publishing flexible working policies; however, there is no harm in employers being open and transparent about whether they support flexible working with potential recruits, regardless of legislative change.

Managing day one flexible working requests

Organisations may wish to start thinking about how they would manage ‘day one’ flexible working requests, should they be introduced. Although this would confer a right on employees to ask for flexible working from their very first day of employment, in reality this is likely to mean that they will ask in advance of starting, making enquiries at the offer or even recruitment stages.

Consider doing some of the following:

• Training recruiting managers on how to answer questions about flexible working during the recruitment process
• Including information in job advertisements on whether flexible working is available and how candidates can find out more information
• What policy and process changes will be required when any legislative changes are confirmed
• Any possible changes needed to induction processes to support flexible workers

The Government has stated that they want to encourage organisational cultures where employers fully consider requests for flexible working and ensure that any changes to legislation genuinely support an informed discussion between the employer and employee. Can this be achieved? Only time will tell.

More resources from myhrtoolkit

Article: How to manage hybrid working requests

Webinar: The future of flexible working: is it looking bright?