Supporting Flexible Working

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21 June 2024

Most employers have seen an increase in flexible working requests post pandemic, with employees keen to remain home based or reduce their hours or perhaps their working pattern. The Government have announced that with effect from 6 April 2024 new flexible working regulations (‘the 2023 Regulations’) give employees the right to request flexible working from day one of employment, and an increase to two statutory requests in any 12-month period. Employers have new requirements to consider the request now within 2 months (‘the decision period’) and a new requirement to consult with the employee before rejecting their flexible working request.

Granted, such requests may at first glance appear to be difficult to accommodate long term, but the key is to get creative - negotiate, compromise, and consider the key advantages to implementing more flexible arrangements.

Employers who embrace the benefits of flexible working have found that they have significantly improved applicant attraction, improved employee retention, greater engagement, with more productive, happy, and motivated staff, resulting in lower levels of sickness absence and resignations.

In today’s competitive recruitment market where there are more jobs than candidates, employers who demonstrate understanding of the importance of work life balance and listening to employee needs, gain the upper hand in attracting top talent. Retention of loyal staff and getting the right candidates when recruiting leads directly to an impact on the bottom line through cost savings. We’re not just talking about cost to recruit, but productivity dips during notice periods and is reduced during the induction periods of new starters which impacts the bottom line. You may even be able to save office space or furniture costs with job share, home working or hybrid working arrangements.

Reducing absence

Enabling working from home or flexible hours can reduce levels of sickness absence in the workplace by creating a work life balance that allows employees to juggle the demands of life both inside and outside of work. Even permitting home working occasionally or a temporary change the hours or place of work can have a significant impact on an employee’s engagement and ability to meet the competing demands of life.

Save money

Something which is frequently overlooked is the cost-saving opportunity presented by ongoing flexible working arrangements. If you have several staff who are not in the office full time, you may decide you don’t need to provide them all with permanent desks and can save on office space by using a hot desking arrangement. At Robinson Grace, we have a 50% staff to desk ratio due to hybrid working arrangements in place - literally half the previous number of desks needed!

Also, staff reducing their hours usually reduce their salary by the proportionate amount, and if the work can be managed in shorter hours, this obviously reduces your overall salary bill.

It is important not to be short-sighted, and if you can agree requests where possible, you can create a workplace culture where flexible working is fully encouraged and supported to the benefit of employees and employers alike. It is good practice that a meeting should be offered even in cases where an employer is intending to accept a request.

While we would encourage all employers to agree flexible working requests where possible; although we recognise that it can be difficult, and it may not always be practical to do so. Even if a request must be refused, open and honest dialogue will help to strengthen relationships within the business and by treating flexible working requests empathetically, the outcome can be a win-win situation for everyone.

I don’t think it will work but have no proof, can I insist on a trial period?

If you are unsure whether the proposal will work, you can propose a trial period of a number of weeks to assess whether it could work on a more permanent basis. You can’t insist on a trial, so if the employee is not agreeable, you will need to decide if it is to be approved or declined. Trying out an arrangement can be helpful to both sides, giving the employee the chance to prove their proposed arrangement works. A trial may not be possible of course if the employee needs to make childcare arrangements in advance for example.

Can I simply refuse a request?

From 6th April 2024, you must consider requests from employees from day one of employment. Employers are not legally obliged to agree it if you have a justifiable business reason for your refusal.

What if previous approved requests are similar?

You may be concerned about precedents, both in terms of wondering if there is already a precedent that must be followed or in terms of being reluctant to agree new requests in case a precedent is set for future requests.

In fact, each request should be considered on an individual basis, so the fact that you have agreed something for one employee doesn’t then compel you to agree similar requests by other staff later down the line. Of course, if an employee making a request to reduce his or her hours can see that a similar arrangement agreed previously works really well, they may refer to this as evidence that their request is workable.

But sometimes the opposite is true, for example in a small organisation where staffing is often tight, it’s reasonable not to agree homeworking for an employee if you already have someone in the same team homeworking and having two employees based at home would leave you short-handed. So, in that situation the fact that a similar request has been agreed previously may actually be a factor in support of a refusal of a new request.

As long as your refusal fits into one of the specific business reasons you are allowed to use to refuse a flexible working application, it is fine to refuse requests similar to those agreed before, and when considering a new request, you don’t need to worry that you’ll be held to similar requests in future.

Do I have to give a reason for refusing?

Yes, you certainly do. Although employers are not obliged to agree to requests, they must consider them carefully and properly, and if they need to refuse the request, give at least one of the eight specific legally appropriate business reasons for that refusal.

Those reasons are as follows: the burden of additional costs an inability to reorganise work amongst existing staff an inability to recruit additional staff a detrimental impact on quality a detrimental impact on performance detrimental effect on ability to meet customer demand insufficient work for the periods the employee proposes to work a planned structural change to your business.

As well as giving one or more of the above reasons for a refusal, you will need to explain why that reason applies in the circumstances. For example, if you are citing a burden of additional costs, you should explain what these costs will be.

Should I allow an appeal?

Yes, ideally. The new ACAS Code of Practice on requests for flexible working emphasises the importance of proactively offering an appeal in the event of a rejection. It demonstrates that you have dealt with a request in a reasonable manner by allowing an appeal process. If an appeal is not offered, employees have the option to bring a grievance if they feel their request has not been fairly considered or refused for a legal reason.

Be aware:

If a flexible working request is not fully and fairly considered, with specific reasons for refusal set out, an employee could bring a claim under discrimination legislation, for example, because they are female and more women than men are responsible for primary care within their family unit; or because they have a disability and employers have a duty to make reasonable adjustments under the Equality Act 2010.