Flexible Working: Is it all change?

(6 min read)

Flexible working remains high on the agenda this Autumn. We are seeing a renewed focus on working patterns and as hybrid working has changed the way many of us work, businesses are still finding the right balance and looking at ways to encourage greater office-based working. While employers are mindful of the well documented advantages of staff being present in the workplace, workers' desire for more workplace flexibility continues to be an important consideration. What are the latest developments and what do they mean for employers?

A recent survey from Gartner has found that 59% of candidates who had accepted a job offer said they had done so because it offered greater flexibility in when or where they worked. Data from LinkedIn earlier this year indicated that more than a third of UK workers would have quit their job if their employer demanded they return to the office full-time.

Women are particularly keen on more workplace flexibility – more than half (52%) reported they had left or were considering leaving their job because of a lack of flexibility.

This is a hot issue for employees and one which employers need to address, so what are the latest developments and what do they mean for employers?

Hybrid/Remote Working

There have been numerous reports in the media of many high-profile businesses, including Zoom and Amazon, "ordering" their staff back to the office for a greater part of the working week. This is in direct contradiction to their previous policies which allowed greater autonomy for workers. While this represents a shift away from fully remote working, it does not indicate that businesses are looking to end hybrid working patterns and require staff to be back in the workplace five days a week. Earlier this summer HSBC announced plans to relocate its London headquarters to smaller premises as hybrid working has reduced its office space requirements, a decision which resonates with many other employers. With businesses committing to reducing overheads by downsizing its premises, staying put or not expanding their business space based on the hybrid working model, hybrid working looks set to stay.

Flexible Working Requests

As we reported in July, the Employment Relations (Flexible Working) Act 2023 will bring forward measures giving employees additional rights to make flexible working requests including:

allowing two statutory requests in any 12-month period (rather than the current one);
introducing a new requirement that employers cannot refuse an application unless they have first consulted the employee about the application;
requiring employers to respond to a request within two months (rather than the current three);
removing the existing requirement that the employee must explain what effect, if any, the change applied for would have on the employer and how that effect might be dealt with.

Although it is not mentioned in the Act, the Government has confirmed that the right to make a flexible working request will be a day one right to be introduced through secondary legislation "when Parliamentary time allows", but it is expected that this change in law will be made at the same time as the other provisions come into force which is expected to be in the summer of 2024.

It is worth noting that the new legislation will not give employees the right to work flexibly, it will still be a right to request flexible working only. The eight grounds on which flexible working requests can be refused also remain unchanged.

ACAS draft Code of Practice

Alongside legislative changes to requests for flexible working ACAS has published a revised draft statutory Code of Practice on handling requests for flexible working which is intended to provide employers, employees and representatives with good practice advice on how the new flexible working rules should work in practice. While not legally binding, Employment Tribunals will take it into account when considering relevant cases and ACAS will also update its non-statutory guidance on flexible working which will accompany the Code.

The draft Code sets out that every request should be handled in a reasonable manner and an employer cannot reject a request without first consulting the employee. The consultation meeting should be held "without unreasonable delay" and should include careful consideration and discussion of any alternative flexible working options which may be available and suitable. It also extends the right to be accompanied at a meeting to include trade union representatives (similar to the right to be accompanied in disciplinary and grievance hearings) not simply by a work colleague only.

It distinguishes between a statutory request for flexible working and a statutory request for a predictable work pattern. The right of workers and agency workers to request a predictable work pattern is being introduced by new legislation (the Workers (Predictable Terms and Conditions) Act 2023) and is expected to come into force in September 2024. The draft Code explains that where a request is to improve predictability employers may wish to follow the procedure for requesting a predictable work pattern, although employees will only be able to have one live request either for flexible working or for a predictable work pattern with the same employer at any one time.

The consultation on the draft Code closed at the beginning of September 2023 and we await the findings.

Non-statutory Flexible Working

The Government has also issued a call for evidence on "non-statutory" flexible working. It believes that significantly more flexible working is taking place on a non-statutory basis which it wants to understand. It intends to use the evidence to develop its flexible working strategy moving forwards. The call for evidence is looking at flexible working arrangements, other than those agreed using the statutory request for flexible working legislation, including regular workplace arrangements such as an organisational approach to hybrid working or ad hoc occasional arrangements, for example an individual request for a change to hours for a medical appointment. It is also looking for information on organisational practices and policies. The call for evidence closes on 7 November 2023 and is available here.

What does it mean for employers?

Where we see employers taking a more rigid approach to workplace attendance, we are likely to see a rise in the numbers of flexible working requests. However, the changes to flexible working requests themselves are not likely to have a huge impact on employers. The ACAS draft Code encourages a more transparent process and fosters a more supportive corporate culture towards flexible working, but the eight business reasons to reject a statutory request are unchanged and the balance of power remains with the employer. The changes to flexible working requests are not expected to come into force until next summer, which gives employers time to update policies and train managers and HR teams on the impact the changes will have on how requests are handled.

With flexible working being high up on the employees' agenda, many businesses are keen to show their support. Tesco received much publicity over the summer when it introduced the day one right to request flexible working and other employers may want to consider updating their policies ahead of the change in law next year.

The right to request flexible work will be a day one right and, while the details are yet to be announced, employers should consider how this will work in practice. It may be appropriate to consider what flexible working arrangements would be suitable for new roles and include flexible options in job specifications and advertising. Encouraging open and transparent conversations with job applicants on flexible working may be preferable to dealing with a day one request and will be indicative of a supportive workplace culture which in turn attracts talent.