HR Seminar: Changes to Flexible Working Requests
C&C’s third event in our 2024 HR series clarified the recent legal amendments to flexible working requests and debated the risks and opportunities around denying and approving those requests from a business’ perspective.
We are hugely grateful to Kevin Poulter (Employment Law Partner, Freeths LLP) and Sally Miles (Head of HR, Impax Asset Management) for joining our very own Elspeth Shaw as co-hosts, bringing invaluable experience and insights to the conversation. Kevin framed the discussions by presenting the practicalities and expectations of the legal changes, with Sally running through what the HR implications might be and how HR professionals can mitigate potential risks.
To provide a framework for this post-discussion article, here is a brief outline of the changes:
Employee requests for flexible working can be made on the first day of employment
Employees are no longer required to suggest how businesses might incorporate their request into the current system
Employers must consult with the employee about their request
Employers must respond within 2 months
The inclination to interchange hybrid working with flexible working was swiftly ironed out and other types of flexible working were defined; part time working, job sharing, flexi hours, staggered hours, phased retirement and phased ‘work returners’. Immediately, it was clear that the apprehension around the topic is in part due to the variety of flexible working options so that HR and line managers in turn have a challenging task defining policies against individualised requests which often blur any pre-defined options.
Kevin Poulter (Employment Law Partner, Freeths LLP
The conversation broadly concentrated on two motifs; what are the risks and opportunities the changes to flexible working requests poses for HR professionals and businesses?
The widely anticipated increase in requests from the first date of employment has thus far not been evident. Indeed, of the 30+ organisations in attendance, only 1 had experienced an employee submitting a request in light of the April amendments. Companies were cautious that employees would run through full recruitment processes which may have narrowed the talent pool due to current company policies, and yet would be immediately curtailed by the successful candidate making a flexible working request. In reality, many attendees agreed that candidates will tend not to apply for roles which do not initially align with their expectations, or would at the very least set out their alternative expectation during the interview process. Businesses who use external agencies will also have further clarity on expectations around flexible working as part of the candidate due diligence, thus further reducing the risk.
Leading on from this, was the potential for a ‘first come first served’ advantage. As Kevin and Sally emphasised, each request must be consulted as an individualised process and therefore, the assessment which made it possible to accommodate one employee’s request may no longer be met to accommodate the same / similar request from another employee within the same team.
Thirdly, and perhaps the point of most contention, is that denying requests for flexible working may leave organisations at greater risk of claims for constructive dismissal or discrimination, should flexible working be refused. The upshot here is that organisations should consult each case with the same self-reflection and assessment whereby, if it is possible, it should be approved, regardless of the employee justification (or lack thereof). Moreover, suggesting consultations during the process is not only good practice, as Sally pointed out, and also now a legal requirement but can encourage open communication around the request, how the company might incorporate the changes, or perhaps present alternative types of flexible working or a trial period for the request. Whilst there is no legal precedent for trail-periods, it is a good way of mitigating practical risk around requests before they are submitted as contractual changes and become vastly more challenging to amend.
Sally Miles (Head of HR, Impax Asset Management)
Simply put, happy people worked harder. Sally regularly emphasised that the changes to employment law are the legal minimum required to be offered by businesses and it is in the interest of organisations to ensure employees are given the right opportunities to perform, progress, remain engaged and ultimately be retained by a business. Therefore, the expectation is that for the vast majority of businesses, the recent changes will not trigger any upheavals in current company policy.
Sally went further to urge People teams to embed the amendments into conversations around planning for the future. HR must utilise this opportunity to advise and coach leadership on the recent process changes whilst also encouraging them to think more strategically around job roles, and how they might look in 5 – 10 years. In light of huge progression across AI and system-automation, the current precedents and norms for productivity and performance will inevitably change and so all requests should be handled with one foot firmly planted in succession and future workforce planning.
Inevitably, conversation explored the generational division or cohesion the increased possibility of flexibility could facilitate. The expectations and demands of Gen Zs has been, generally speaking, for a stronger ambition for flexibility, and a ‘healthier’ lifestyle and work life balance. The recent changes may therefore encourage the next generation to interview for roles and organisations they otherwise may not have thought about due to the possibility of submitting requests from day one.
For many organisations who already offer above and beyond the legal minimum around flexible working, not a lot will change. Indeed, there are arguments that the government have merely been led by what the industry was already doing. It is also worth mentioning that the courts are still seeing value in office-based working, stating in a widely publicised tribunal against the FCA that the company were right to identify weaknesses in working from home. Nevertheless, for HR professionals, there is reason to be optimistic that the changes can facilitate a drive for more conscious job evaluation for the next 5-10 years, and is at the very least, a benchmark for organisations in supporting the retention and morale of employees.
Thank you to everyone who joined us for the event, we look forward to hosting you again soon! For hiring support and introductions to our bespoke training, reach out to grace@candcsearch.co.uk
