The past three years have seen an increased demand for flexible working practices globally, as COVID-19 restrictions suddenly limited the traditional working model. Despite this, it is only in recent months that the government has reviewed the (until now) rigid framework for flexible working. A consultation entitled ‘Making flexible working the default’ was initiated by the department for business, energy and industrial strategy in 2021, with the outcome of the consultation published in December 2022. The recommendations included making flexible working a day one right for employees, rather than having to wait until they have been employed for 26-weeks to apply for flexible working.

When the government response was announced, we published an outline of the proposed changes to make flexible working more accessible. Since then, it has become clear that while the results of the consultation will inevitably help the majority of employees, it has also opened the workplace up to a whole world of new Employment Law challenges.  

As The Employment Relations (Flexible Working) Bill is expected to be discussed in the House of Commons on the 24th of February 2023, we thought we’d share some of the potential Employment Law challenges that could coincide with the bill. 

Firstly, it’s important to remember that the bill will give employees a right to ‘request’ flexible working from day one, not a right to ‘have’. However, if employers reject a request, they must consult employees as a means of exploring the available options before doing so. Should you need to reject a flexible working request, it’s important to keep track of each avenue you’ve tried in coming to that conclusion, to ensure that the employee in question cannot claim that you haven’t reviewed their request properly. 

Discrimination is one of the main factors to be aware of when implementing flexible working, given that individual reasonings for requests are likely to be personalised for each employee. A flexible working policy setting out a procedure for flexible working requests, so that employees can understand the process behind each decision, is now an essential part of employer’s toolkits. It should be made clear that everyone has the right to request flexible working regardless of their circumstances, and that it’s not just for specific groups.  

Obviously, implementing long-term hybrid or remote working comes with a few legal risks… 

If you are changing the terms of an individual’s employment, you should make sure that this comes with a new employment contract or a variation in writing to that contract which refers to the original contract and is signed by both the employer and employee. For example, where the contract states that: ‘employees must work in the office five days a week’, it should be updated to reflect the new agreed working patterns. This should help prevent a breach of contract claim or another dispute.  

If flexible working is allowed for an employee, it’s important to make sure that they are working the correct hours. An obvious worry is employees working less than their contracted hours whilst working remotely, but it is also important to ensure that flexible working arrangements do not lead to your employee working an excess of 48 hours per week, across an average of 17 weeks to avoid breaching the Working Time Regulations. 

It’s important to remember that it is completely prohibited to dismiss someone in relation to their flexible working request. With this in mind, it’s important to ensure an Employer is able to evidence that a dismissal is not connected to an employee’s flexible working request; we would strongly advise avoiding a dismissal coinciding with a flexible working request!  

Should you require any further advice about the employment law challenges of making flexible working the default, please do not hesitate to contact a member of our Employment team. 

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