Employees will have more rights to ask for flexible working arrangements under new legislation coming in this year.
Workers with 26 weeks of employment can ask for flexibility on how, where and when they work. Where employers previously did not need to consult with workers before giving their decision, they will now be expected to, and to provide their response within two months instead of three.
The new legislation, the Employment Relations (Flexible Working Act 2023), also allows workers to make two requests a year instead of one. They will also no longer need to outline the effect of their request on the business or how it could be dealt with.
An employer can still refuse a request, particularly if it is not viable or even detrimental to the business. But with ongoing staff retention problems, most businesses are willing to accommodate in order to keep valued staff and avoid the expense of finding a replacement.
A February 2023 report from global HR and payroll firm Remote showed a 9% increase in employee turnover in the UK and US since 2019, the last full year before Covid 19. Today in the UK, it is 35.6%. Hybrid and remote workers are least likely to look for new roles (38%), compared to in-office workers (43.7%). The report said to recruit a new employee takes an average 40 days, while the cost to a business is an average 34.5% of the new employee’s salary.
Although businesses do not have to agree to a request, they should remember legislation such as the Equality Act 2010. For example, if a request for home or hybrid working from an employee suffering from chronic fatigue syndrome is refused, and the condition amounts to a disability, could a failure to make reasonable adjustments be grounds for a discrimination claim?
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 for any possible compromise should be provided, and the employer should be prepared to evidence that. If not, agreed a proper reason should be provided.
Any new agreement should be formalised in writing, such as drawing up a new contract of employment outlining the varied terms and signed by both parties.
Kerry Hudson is solicitor, personal injury and employment, at BTTJ.
