Flexible working rights might be about to change

by | Dec 1, 2021

Employees’ flexible working rights might be about to change

The right to request flexible working is often associated with just parents and carers; perhaps because these employees are, still, the majority of individuals most likely to request flexible working.

Did you know that all employees in your organisation who have been with you for 26 weeks or more, are allowed to formally request changes to their working patterns, such as homeworking and part-time hours?

The Government is consulting on proposals where employees would no longer need to wait until they have accrued 26 weeks’ service to make a formal working request.

Should employers be concerned about changes to flexible working?

Employers will still have the right to reject requests, although the grounds for rejection may become more limited, in time.

Perhaps, then, this is why 79% of voters in a recent Magma poll supported an employee’s right to request flexible working from day one of employment.

But there could be increased demand for flexible working, with more requests being made by a wider demographic of the workforce, sparked by increased employee awareness of their rights. Indeed the pandemic highlighted a new way of working to many.

61% of employers in a survey undertaken by CIPD highlighted that, during the pandemic, there was a better work-life balance as a result of homeworking: This work-life balance is exactly why some employees might take initiative to request a new working pattern.

There may be a positive benefit to your business.  Almost two thirds of employers (65%) recognised by September 2020 (amid the pandemic), that productivity had either increased, or stayed the same. An additional 7% did not know what the effects on productivity were.

What should employers be considering in anticipation of changes to flexible working?

Start by looking at how you currently review productivity – is this based on perceptions of who works the hardest, i.e. who is in the office for the longest period of time, or based on actual, measurable output? If you do not currently have a formal measure for output, can one be put in place?

It might actually be that those who are working from home have less distractions, or those who are working two hours less per day are working more productively per hour. There would also be nothing to stop you from giving employees the benefit of a trial period, implementing a temporary change to their terms and conditions, and measuring how exactly the change works for them.

Whilst legally this proposed change to a ‘day 1’ right to request flexible working might not make a lot of difference in terms of widening the scope of those that are eligible, increased demand for flexible working is likely. Accommodating changes to the way your workforce work, firstly by grasping more accurate measurements of output and understanding the benefits flexible working could have in individual circumstances, could actually positively benefit the organisation too.

Our top five tips on how to make flexible working work:

  1. Be consistent in your rationale. If you say no to someone that requested flexible working, and their reason for asking was to accommodate childcare, then you could find yourself open to a sex discrimination claim.


  1. The above goes hand-in-hand with taking an objective approach: our second tip. Do not say ‘yes’ to someone that has asked to work from home, just because you think they will be more productive than another employee, in the same role, that you’ve said no to.


  1. Have a clear and written flexible working policy in place, including setting out that employees can informally request flexible working (which means, if you say ‘no’ at this stage, they might be less likely to pursue a formal request)


  1. Utilise meaningful trial periods if you are unsure about whether the change would work. Also set points at which you can catch-up with the employee and review how the temporary change is going. This way, it will not come as a surprise if you eventually reject the request, but have been trying to make it work throughout


  1. Ensure that contractual changes are documented carefully and are agreed to by the employee. Even trial periods/temporary changes should be documented, demonstrating that the employee understands the change is just temporary. If you grant a permanent change, consider whether you would like to make this conditional on the employee accepting a related change to their employment contract which would offer you further protection i.e. stronger confidentiality provisions
If you’re receiving flexible working requests from employees, we can help ensure you act lawfully. Please contact us.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

FOR MORE INFORMATION get in touch today!