Flexible working: How can UK employers unleash the potential and get the balance right?

The way that we work continues to change. Some employers that had embraced hybrid working in a post pandemic world are now seeking to recalibrate, to ensure that that their approach strikes the right balance between home working and face to face to meet the needs of the business in the longer term.

With the right to request a flexible working arrangement now a day one right for all employees from 6 April, employers are anticipating an increase in the number of statutory flexible working requests they receive. It is essential that managers receiving and reviewing requests understand the importance of looking at each case carefully on its own merits, understand the business benefits of providing additional flexibility, and are aware of how discrimination can arise in the decision-making process in order to avoid unwanted grievances and employment tribunal claims.

Getting the approach to flexible working right helps employers to attract and retain talent, increase productivity and reduce absenteeism, so there is a strong business case for employers to ensure they leverage the positives of flexible working for both employer and employee.

What rights do employees have?

All employees now have the legal right to request flexible working from the first day of employment. Employees can request a change to: the number of hours they work; when they start or finish work; the days they work; and/or where they work. Examples include requests for home-working, term-time working, compressed hours (that is, to work the same number of hours but over fewer days) or to enter into a job-sharing arrangement (where one role is effectively shared between two employees).

Any request must be set out in writing and an employer will then consider it in line with the statutory procedure, which includes an opportunity for the employee to discuss the request with their employer. An employer must inform the employee of the outcome of their request and although there is no statutory right of appeal, many employers will include one in their flexible working policy. An employee should receive a decision on the outcome of their request within two months (unless the parties have agreed an extension of time between them).

Employees are entitled to make two applications under the statutory procedure in any 12 month period. However, an employee may make additional requests which fall technically outside the statutory scheme and will be for the employer to determine whether or not it is appropriate to proceed with considering it.  

Ultimately, the statutory rules do allow an employee to make a complaint to the Employment Tribunal for specified reasons relating to compliance with the rules; an employee cannot bring a complaint on the basis that their request was simply refused.

Employees who make or are planning to make a statutory flexible working request are also protected from dismissal or detriment related to that request. Examples of detriment include experiencing bullying, harassment, being overturned for promotions, lesser pay rises and other less favourable treatment.

Considerations for businesses

The benefits of flexible working are well documented, delivering not only improved employee wellbeing and engagement, but also significant benefits for employers including increased productivity, and the ability to attract and retain talent. Flexible working also offers significant cost savings, from reduced absenteeism through to lower fixed costs for businesses that can save on office space. There are of course some disadvantages for businesses to be aware of and manage – most frequently cited are the informal development of junior colleagues that happens through day to day office interactions, as well as the challenges of building a cohesive team and strong organisational culture when colleagues are rarely together in the one place to experience face to face interaction.

While most employers recognise the value in employees being able to work in a more flexible way, for many there are also strong motives to ensure that a structure is provided for teams to come together in one place and provide a place for team-building, collaboration and development opportunities. In many cases, a workable balance can be found to meet the employers' and employees' needs and striking this balance has clear productivity and well-being benefits.

There will be cases where an employee is seeking a flexible working arrangement that is outside the scope of any permitted hybrid working arrangements (where these exist), and in these instances, it is essential that a flexible working request is not dismissed without consideration simply because it does not fit within the organisation's hybrid working structure.

When an employee submits a statutory flexible working request, it must be considered in a reasonable manner and an employer's refusal to accept it must be based on one or more of the following reasons:

• The burden of additional costs.
• A detrimental effect on the ability to meet customer demand.
• An inability to reorganise work among existing staff or recruit additional staff.
• A detrimental impact on quality or performance.
• Insufficiency of work during the periods the employee proposes to work.
• Planned structural changes.
• Such other grounds as may be specified in regulations made by the secretary of state.

Discrimination risk

It is important to remember that, even where a refusal is on one (or more) of these grounds, it can still be discriminatory.

There is no intrinsic right for employees to demand a working arrangement that suits them personally. However, where it cannot be reasonably accommodated by an employer, particular care must be taken to consider the implications of any required working patterns for those with protected characteristics or who are associated with a person with a protected characteristic and who would suffer a particular disadvantage when required to comply with specific working arrangements.

In the context of working parents, it has been established statistically that more women than men have childcare responsibilities and are therefore disadvantaged by less family-friendly working practices, such as a requirement to work full-time. In such a case, an employer needs to show that there is objective justification for refusing a woman's request to accommodate her wishes. That being said, refusing requests from men could also raise discrimination risks if they are treated less favourably than women seeking flexibility.

Care must also be taken when considering flexible working requests from those who are making a request because of their association with someone with a protected characteristic, for example to care for a disabled relative. The Employment Tribunal has previously upheld a claim for indirect disability discrimination by association where a senior manager, who was the primary carer for her disabled mother, was required to be office based. This was found to be discriminatory and the need to have senior managerial supervision of more junior staff was not a legitimate justification on the particular facts of this case.

There is an increase in older members of the workforce looking for flexibility as many have caring responsibilities (including older relatives and grandchildren), are managing health issues, or are simply looking for flexibility to work with their lifestyle. Employers should pay particular attention to managing requests from older workers carefully and sensitively.

Transparency and consistency is key

To create a successful approach to flexible working and reduce the risk of discrimination claims, employers should create a clear and transparent policy and avoid any "one size fits all" decisions to flexible working requests. There should be a clear process for managers evaluating requests, and training managers on discrimination risks and unconscious bias will underpin a fair process. Keeping an open mind and using trial periods where there is concern about the feasibility of an arrangement is a good compromise and enables both the employee and employer to explore whether an arrangement can work in practice. In the event that a request cannot be accommodated, it is important to clearly document the basis of any decision with reasoned reference to the statutory grounds for refusal.

Flexible working arrangements that accommodate different lifestyles, including caregiving responsibilities and personal pursuits, foster inclusivity and have a positive effect on productivity and rates of sickness absence. Flexible working can also create opportunities for individuals with disabilities or those who face barriers to traditional work arrangements, such as neurodivergent employees, increasing the talent pool for employers.

If you would like to discuss the issues covered in this Insight, please get in touch with our experts listed below, or your usual Osborne Clarke contact.