The Flexible Working bill received Royal Assent in July, which means that the above act will be implemented in 2024, possibly April 2024.
In short it provides Employees with a greater ability to request changes to the number of hours they work each week, as well as their start and finish times, and the right to request home working.
What the Bill does not currently include, but is going to be introduced by the Minister of Enterprise, Markets and Small Business, is a right to request changes from day one of employment.
This means that regardless of the details given in Job Adverts, Job Offer letters or Contracts of Employment, an Employee can ask to change their location of work, working hours or other working time details from their first day in a job.
The Act also includes an opportunity for workers to submit two requests in a rolling twelve-month period. Currently it is limited to just one request.
Any request made by an Employee will also have to be subject to a 2/3-week consultation process. Currently a line manager only needs to meet with an Employee to discuss their request.
The right to request Flexible Working has been in existence since 1996. However requests can currently only be made after 6 months continuous employment and there is no need for consultation. The Government has decided to beef up this current entitlement to try and tempt those people back to work who chose to stay at home after lockdown regulations were lifted. The purpose is to make work more attractive to these people and enable them to fit work in around their domestic circumstances.
Councils do not have to agree to an Employees request, there are six statutory reasons for refusal, which are:
- Additional cost to the Council.
- Damage to the service provided to the Public.
- Inability to share work out amongst other staff.
- Damage to quality of work.
- Damage to performance.
- Inability to recruit staff to cover reduced hours.
If, following a period of consultation and a meaningful assessment of the evidence, it can be proven that one or more of the above would happen if the Employee’s request was accepted, the request can be rejected.
The biggest impact of this legislation is likely to be on office and administrative staff. Requests from these people to be home based or to work different hours may be more achievable. The potential challenges for Councils are likely to be:
- Staff Planning. If a Council tries to recruit someone to fill a particular time slot or location, the new recruit could throw these plans up in the air from day one by asking for a change to what they applied for.
- As requests are addressed on a first come basis, there will no doubt be people who don’t get what they have requested, whereas colleagues who made the same request earlier did.
- Keeping offices staffed and accessible to the public at times that are not popular with the workforce.
- Ensuring home working arrangements meet statutory requirements in terms of risk assessments, insurance and payment of home working tax allowances.
- Councils may be unable to say that a new recruits Probation Period has failed because their working hours or location of work were unacceptable to them.
As the new recruit will have a statutory right to make this request, using it as a reason to terminate their employment could be automatically unfair. The Council would have to demonstrate that it has conducted meaningful consultation, fully investigated the request and based the decision to dismiss on sound business reasons.
Chris Moses LLM Chartered FCIPD is Managing Director of Personnel Advice & Solutions Ltd. He is a Chartered Fellow of the Chartered Institute of Personnel and Development, and has a Master’s Degree in Employment Law.
If you have any questions regarding these issues please feel free to contact him on (01529) 305056 or email email@example.com