The new Employment Relations (Flexible Working Act 2023), which comes into force in 2024, will offer employees greater flexibility in their working arrangements with employers being expected to consult with them on their request providing a response within two months instead of the previous three.
Workers will be able to ask for flexibility on how, where and when they work and be permitted to make two requests a year – an increase from the current single annual request. It was suggested that this right would be available from the first day of employment, however currently it has remained that a request can only be made after 26 weeks of employment.
Furthermore, employees will no longer need to set out in their application the effect of their request on their employer’s business or how that could be dealt with.
Kerry Hudson, Solicitor, Personal Injury and Employment at Coventry & Warwickshire Solicitors Brindley, Twist, Tafft & James, said that whilst the changes affect the entitlement to make a flexible working request, and that a consultation would need to be had, the considerations the employer must bear in mind have not materially changed. A company can still refuse a worker’s request for flexible arrangements, particularly if it is not viable, or even detrimental to a business.
But with British business and industry facing ongoing problems with staff retention, Kerry said most businesses today are willing to accommodate such requests in order to keep valued staff and avoid the expense of finding a replacement.
A report out earlier this year from global HR and payroll company Remote showed employee turnover in the UK and US had increased by nine per cent since 2019 – the last full year before the pandemic. In the UK it now stands at 35.6 per cent.
Hybrid and remote workers in the UK were the least likely to look for new roles, at 38 per cent, compared to in-office workers (43.7 per cent).
The report added that the recruitment of a new employee takes an average 40 days while the cost incurred to a business is an average 34.5 per cent of the new employee’s salary.
Kerry said that although businesses didn’t legally have to agree to an employee’s request for flexible working, they did need to be mindful of other pieces of legislation such as the Equality Act 2010. For example, if a request is made from an employee suffering from chronic fatigue syndrome for home working for some/all of their working week and it is not agreed, if the condition amounts to a disability, could the fact that the flexible working request being turned down be grounds for a failure to make reasonable adjustments and a claim for discrimination.
Similarly, a mother’s request when coming back from maternity leave for reduced hours is denied, could it amount to discrimination?
A genuine attempt to consider the request together with consideration given for any possible compromise should be provided and the employer should be prepared to evidence that. A proper reason needs to be advised as to why the request, if it can’t be agreed, should be set out.
Kerry advised any new agreement should be formalised in writing, in many cases drawing up a new contract of employment outlining the varied terms and signed by both parties.
Kerry said: “The retention of staff is notoriously difficult at the moment so many employers are trying to accommodate their employees and are offering flexible working.
“Where there has been a variation of terms, we would always advise formalising it. As an example, there may be a case where an employee is asked to return to the office full time, and even though it’s not in their contract argues that it’s an implied term they work from home on Fridays because they’ve done it for the past year and nobody has said anything. If contract terms are set out in writing, it’s always much easier.”
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