26/06/2021 – Is flexible working set to become the default?
Yes, it seems, if Peter Cheese, Co-Chairman of the government’s flexible working task force, and Chairman of the Chartered Institute of Personnel and Development, has his way.
The pandemic, said Cheese, “taught us that the nine to five routine doesn’t work for everybody, so there is no ‘one size fits all’…..but it has also raised a significant expectation among many people in the workforce today that there isn’t just one way to work.” He also added that he would like more choice and flexibility on how he works.
The current flexible working rules entitle employees with 26 weeks service to formally request flexible working, which normally means changes to hours, days, or the location of their work. Employers are then placed under a duty to properly consider the request, which includes allowing the employee a meeting at which they have a right to be accompanied. When refusing a request the employer must give written reasons for their decision, and allow an appeal.
If enacted, changes to flexible working regulations are likely to allow employees to lodge a flexible working request on day 1 of their employment. There is some suggestion that the default position would be that flexible working should be permitted, with the onus moving away from the employee, who currently has to justify in their request why flexible working will work, onto the employer, who would have to show at the outset their objective reasons for why flexible working would not work.
Employers who groundlessly refuse flexible working requests can find their decisions challenged in an employment tribunal, and some could face unfair (constructive) dismissal or discrimination claims. It’s important that employers objectively consider requests, and seek to find ways to make flexible working work, rather than focussing on why it won’t work. Sometimes a trial period agreed with the employee can be an effective route forwards, though we would always advise that employers capture the terms of the trial (including defining success criteria) by way of a temporary variation to terms letter (which myHRdept can draft for its clients.)
It’s also worth remembering that, other than in the case of a temporary trial, a change to terms agreed under the flexible working procedure is a permanent change to an employment contract, This could be a double edged sword for an employee who succeeds in a short term request to reduce hours, but who later wants to increase their hours (and pay). These employees could be facing an uphill battle with their employers if shorter hours have proven effective.
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