Matthew Ramsey and Olivia Wistow-Hughes discuss:

• new arrangements to flexible working; and
• what employers need to do to keep up-to-date.

Transcription: 

Matthew Ramsey: So, welcome everybody to the August edition of the Macfarlanes HR podcast. I'm Matthew Ramsey, I'm the senior knowledge lawyer in the employment team. I'm joined this month by my colleague, Olivia Wistow-Hughes who's one of the lawyers in the team, with a particular expertise in flexible working, which is handy, because that's what we're going to be talking about today. Hello Liv.

Olivia Wistow-Hughes: Hi, Matthew.

Matthew Ramsey: I know that was a big introduction. But it's entirely warranted. Flexible working, obviously one of those areas of employment law which has undergone pretty massive change over the last few years in the post Covid world. I remember when I started practice, it was almost unheard of to do anything outside an office unless you were meeting a client, which you always did face-to-face in a boardroom, in a tie - in my case. With a briefcase, full of hard copy paper. It seems like a thousand years ago. And obviously the flexible working regime hasn't entirely kept up with modern practice. So maybe it makes sense at this point, and just to outline what the current regime is, and then we'll talk about how the Government intends to change it.

Olivia Wistow-Hughes: Thanks, Matthew. Yes. So currently employees can only make one request for flexible working per year, and they can only make that request after they've been at the company for six months. When they make a request. They've got to provide certain details to the employer, the main one being that they need to explain the effect that their request may have on their employer, and how that might be dealt with. So, for example, if they want to go down to four days per week, they would need to explain how their work would be dealt with on that non-working day. And then, once an employer receives a request, it's not required to agree to it. But they must reply to the employee either way within three months, and they can only refuse a request for one of eight prescribed business reasons. So, for example, if it would cost the business too much, or if it would negatively impact performance, and if your employee refuses a request, they're not obligated to offer an employee a right to appeal, but it's generally considered good practice to allow for this, anyway.

Matthew Ramsey: Understood. So that’s how this sort of statutory framework works if an employee wants to ask for a flexible working. So, anything other than five days a week in the office arrangement? I mean, I guess it's in the modern world. It's and we see very, very commonly from clients and firms imposing agile working policies that are completely separate from the statutory framework.

Olivia Wistow-Hughes: Yeah, particularly since Covid. There is a move towards more agile working, but, as you say flexible working under the statutory regime is a more permanent arrangement to be put in place.

Matthew Ramsey: Understood. And if a flexible working request is granted by the employer, is that a permanent change to the contractual relationship?

Olivia Wistow-Hughes: It is, yes.

Matthew Ramsey: Understood. So people really need to be thinking about what they want ahead of their application. Put in their requests, hopefully the decision is fully reasoned and based on one of those business reasons that the statute allows?

Olivia Wistow-Hughes: Exactly that, yes.

Matthew Ramsey: Got it. One of the bits that's been most heavily looked at in the press over recent years is whether or not that right to put in a request, should be a feature of employment from day one, whether that 26-week, six-month service requirement that you mentioned really ought to be there. I understood that the Government and the opposition have both been in favour of making it a day one right. Presumably that's part of the new regime, then?

Olivia Wistow-Hughes: Yes it is. But I say that with a caveat in that the flexible working bill that received royal assent at the end of last month; doesn't include that change which, as you said, has made the headlines, that will be coming in separately. But the Government has promised to introduce that at the same time that it introduces the other changes that will be brought in by the new Flexible Working Bill, which will be in about a year, we think.

Matthew Ramsey: Okay, so do you want to tell us what the differences are in between the old and the new?

Olivia Wistow-Hughes: Yes, absolutely. So I mean, we've covered the main headline change of the right to request flexible working becoming a day one right, and how that's planned to be introduced. In terms of the changes which will be introduced by the act itself, so an employee will now be able to make up to two requests per year instead of just one. They will no longer be required to explain the effect of their request, and that their request may have on the employer, and how that might be dealt with; and employers must respond to any request now, within two months, not three months. And if they're going to reject a request for any one of the eight reasons they must consult with the employee before they do so. So those are the main changes.

Matthew Ramsey: I mean, you would like to think that people wouldn't reject sensible requests to flexible working arrangements without having some sort of meeting with their employees beforehand already, wouldn't you?

Olivia Wistow-Hughes: Yeah, absolutely. We would always then advise a client or an employer to meet with an employee to discuss their requests in any event, because that's also best practice that's been developed by ACAS, and ACAS are actually updating their recommended code of practice to support the new flexible working legislation as well, and the proposed changes don't actually differ too much from current best practice. They just look to increase transparency around the whole process. So, for example, one of the proposed changes to the codes recommends that if a request is rejected, the employer should set out such additional information as is reasonable, to help explain why it was rejected. Whereas the existing code just simply says, in a situation where a request has been rejected, an employee should be allowed to speak to their employer, which is, which is pretty basic stuff.

Matthew Ramsey: So, it’s adding a little bit more process, a bit more rigor to the decision-making structure.

Olivia Wistow-Hughes: Yeah, exactly that. Hopefully, it'll make the whole process a bit more proactive, a bit more supportive and a bit more in keeping with the times.

Matthew Ramsey: And that's got to be right, hasn't it? Because if you go to the time and effort of putting effectively a business case together, to support your application to work from home for a particular period or four days a week then, you know, you deserve the right to have that considered sensibly.

Olivia Wistow-Hughes: Yeah, absolutely. And it just goes towards a good working relationship with your employer.

Matthew Ramsey: And so I guess if people understand the reasons why a request is being rejected they are much less likely to be irritated by that, or try to mitigate that.

Olivia Wistow-Hughes: Yeah.

Matthew Ramsey: What, actually are the rights of somebody who feels that they that hasn't been taken seriously or wasn't deal with in the proper way.

Olivia Wistow-Hughes: Yeah, I mean, there are a few areas which an employer should keep an eye on if they're looking to reject a request. I mean, legally speaking, there is a sanction for non-compliance with the legislation, although that's relatively minor. Arguably more importantly, employers should be mindful of whether or not refusing a flexible working request could amount to indirect discrimination, or constructive dismissal. For example, there was actually a case earlier this year that made the news, where a woman who was returning from maternity leave made a flexible working request for reduced hours, which her employer refused without any real consideration of how the request could be made to work. She successfully sued on the basis that this refusal amounted to indirect sex discrimination because the requirement to work full time places women with children at a substantial disadvantage to men, which the tribunal accepted generally, and with reference to the particular circumstances in this case, that she was actually awarded over a £180,000 in compensation. So it does highlight the dangers of not properly considering a request on its merits.

Matthew Ramsey: Goodness me! And is sex the only one of those discrimination concerns that would normally be at play here? It seems understandable why women with childcare responsibilities might need more flexibility than other groups, does that apply?

Olivia Wistow-Hughes: There are a few other protected characteristics that we do see in practice as well. So, for example, disability, religion, or age. It all depends on the reason behind the request, but it does show that employers should think more widely when they receive a request from their employee. And then, aside from the legal considerations, I do think one of the key things to take away from this update is that it does show that the employment landscape is changing. You know the amends to the legislation and the ACAS code of practice, are not in and of themselves all that ground-breaking ultimately, whether to accept or decline request, remains in the hands of the employer. It's still a right to request. It's not a right to flexible working. And the eight prescribed grounds on which an employer can reject a request remain unchanged, and those are relatively broad. But it does show that flexible working has become so much more widely valued in the workforce, particularly since Covid, as you said at the start, Matthew and the Government's own press release which announced the new Flexible Working Bill. quoted some research which is really interesting which said that 6% of employees change jobs last year due to a lack of flexible options and 12% left their profession all together, due to a lack of flexibility within the sector. And that's almost two and four million workers respectively, which left their jobs due to a lack of flexible working. So, I think, aside from the legal considerations, employers will also need to factor in the recruitment and retention of talent across their workforce when responding to flexible working requests going forward.

Matthew Ramsey: And presumably that's an even more true, as each generation comes into work with an expectation that it will be offered as a matter of course.

Olivia Wistow-Hughes: Absolutely, and with advances in technology as well, which means it is now possible to work more agilely than was previously possible. I think we should expect to see an increase in the number of flexible working requests employers receive.

Matthew Ramsey: Very interesting and so just remind me when all these changes come into force?

Olivia Wistow-Hughes: It's expected to be next year.

Matthew Ramsey: Okay. Well, that's interesting. I work flexibly so I'm all in favour of it. So all of it remains for me to do this month is to say thank you to Olivia for sharing her thoughts with us, and to thank you all for listening. If you have any questions about flexible working, or, frankly, anything else Liv’s contact details are in the episode description, so please feel free to get in touch with your questions and we look forward to talking to you again next month.