With the Employment Relations (Flexible Working) Bill currently working its way through Parliament, now is the ideal time to look at what the ramifications would be for both employers and the wider business community if this landmark legislation becomes law.
As it stands, an employee with 26 weeks of service can make a flexible working request once a year.
The employer can then reject the request based on eight criteria. However, if the new Bill becomes law then this will change to a ‘day one right’, meaning any employee is entitled to make a flexible working request from the day they start working at the company and have the opportunity to make two flexible working requests per year.
In addition, the new legislation would mean that prior to rejecting a request for flexible working, the employer would have to consult with the employee with a view to finding a solution. The timescales to respond to a flexible working request reduces from three months to two months for employers.
But what does flexible working really mean?
As a result of the pandemic, many businesses adapted to offer flexibility in order to retain talent which has typically been hybrid or home working.
However, flexible working is so much more than this. It could be a request for part-time working, shorter hours on certain days or every day, staggered hours, starting later and finishing earlier, term- time hours, condensed hours, job share and of course, home working and hybrid.
While the new legislation could be viewed as an additional burden for the employer with an increased number of meetings and consultations with employees, let's consider the benefits.
Firstly, being able to operate your business with a flexible workforce can help with employee engagement as employees benefit from managing their home life and work commitments without additional pressures, proven to result in enhanced levels of productivity.
Quite rightly, diversity and inclusion is a key strategic initiative in many businesses and when it comes to recruiting talent, many candidates at the interview stage regularly ask employers about their diversity and inclusion strategy.
Flexible working unquestionably increases the opportunity of having a diverse workforce as barriers to entry are reduced dramatically for anyone who may require flexibility or part-time working, such as those with caring responsibilities, those from minority backgrounds and the older workforce.
Therefore, businesses who offer flexible working are in a strong position to attract top talent and are more likely to retain staff.
Yet there is no getting away from the fact that if this Bill becomes law, it could have a detrimental impact on SMEs with small teams.
The Bill does make provision for the impact on cost, productivity and the impact to the customers, but employers will have to extensively consult with employees who make a flexible working request and have sound justification for rejecting the request.
This is the first of several changes that are being considered by the UK Government and it’s becoming more challenging for SMEs to navigate these type of requests, particularly where there isn’t a designated in-house HR professional who can navigate the process effectively.
It’s worth noting that the Bill gives employees the right to request flexible working, not the right to have flexible working. As such, there are eight criteria which have to be considered if the employer plans to reject the flexible working request but before they do so they must consult with the employee with a view to finding some compromise wherever possible.
These eight criteria are as follows:
- the burden of additional costs;
- detrimental effect on ability to meet customer demand;
- inability to re-organise 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; and
- planned structural changes.
When considering the above, it’s not acceptable to reject the request based on any other reasons, such as it doesn’t fit with our culture or we prefer full time employees.
Finally, while there is no one size fits all, employers should follow the progress of the Bill and review current flexible working policies to ensure they are prepared in order to only be compliant, but tap into the untold benefits of having a more diverse and productive workforce.
Fiona McKee is the founder of The HR Practice
