As the final restrictions lift following the pandemic and business recovers, employers were looking to the Queen’s Speech this week to see what important employment law changes were on the horizon in 2022, as part of the long-awaited Employment Bill. As a result of the pandemic and employees being required to work from home, if they could, one expected change is the opportunity to request flexible working arrangements as a day one right.
Sadly, it looks like the wait for this will go on, as there was no mention of the Employment Bill in this latest Queen’s Speech. The Employment Bill has been long under discussion and one of the aims of the new Bill has been stated to give employees more confidence and negotiating power to request agile working, enabling them to perform their role flexibly from the outset, which in many cases has been already proved to be entirely possible.
What is the current law on flexible working requests?
Currently, employees must wait until they have completed 26 weeks’ service with an employer before they can make a flexible working request. If this is rejected, the employee must then wait 12 months before they can submit another formal request.
On receipt of a flexible working request an employer must ensure they deal with the matter reasonably. The ACAS Statutory Code of Practice and associated Guidance says that dealing with a request in a reasonable manner includes meeting with the employee as soon as possible (unless the request is agreed) to get a better idea of the changes the employee is looking for and how those might benefit both the employee and the employer's business. The employee should be given the opportunity to be accompanied at the meeting. The employer should consider the request fairly, looking at the benefits for the employee and the employer as opposed to just focusing on any adverse business impact of implementing them. All requests, including any appeal, must be considered, and decided on within three-months although the employer and employee can agree to extend this time frame.
There are eight specific grounds for rejecting a flexible working request and only these grounds may be relied on as reasons for rejection:
- The burden of additional costs.
- Detrimental effect on ability to meet customer demand.
- Inability to reorganise work among existing staff.
- Inability to recruit additional staff.
- Detrimental impact on quality.
- Detrimental impact on performance.
- Insufficiency of work during the periods the employee proposes to work.
- Planned structural changes.
However, it is anticipated that the number of valid reasons may be reduced in the new Bill.
What was expected from the new bill?
The new Employment Bill intended to make this a right from day one and planned to remove the once-a-year request limit.
This doesn’t mean that employees would have an automatic right to work flexibly, but it does mean that they would be entitled to request to do so, immediately upon starting their new role.
Disappointingly, the Employment Bill was not included in the Queen’s Speech and so these planned changes still appear to be some time off.
What does this mean for employers?
When this bill does finally make its way through Parliament, if this intention to broaden access to flexible working is introduced, employers will have to tread carefully with flexible working requests, as they will face stricter requirements for rejection, and will have to propose alternative options rather than dismissing a request outright. Requests will need to be considered in full.
Of course, employers have a business to run and it will be up to them to decide if the requested arrangements are viable. If an employer has reasonable grounds for rejection, it is possible to insist the job is performed as advertised, even when faced with an immediate request for flexible working.
And for employees?
Even with a new right under an Employment Bill (when this finally gets introduced) employees may still be nervous about setting off their employment on the wrong foot.
If you would like any advice on responding to or making a flexible working request , please contact Sam Dickinson a Partner in our employment team.