Earn on flexible work changes ahead of new laws, attorney says

As you may have seen in the news, the government has published its response to its consultation on reforming the flexible working rules to modernize the existing law. They want to give the current regime more room to manoeuvre, but shy away from radical reforms.

The headline change makes the right to request flexible hours the first day and removes the current 26-week waiting period. It’s a change that has broad support – 91% of respondents supported it, with most of them saying they accommodate flexible work requirements from day one anyway. Other measures include:

– a new obligation for employers to consult with their employees if they intend to refuse requests for flexible working hours
– Allowing workers to submit two flexible work requests within a 12-month period, instead of just one as is currently allowed
– reducing the time for an employer to respond to a request for flexible working from three to two months, and
– Elimination of the obligation for employees to describe the impact of their request for flexible working hours on the employer and to indicate ways in which this could be dealt with

The reforms are welcomed by the CIPD, which has been actively promoting them for more than a year. People Management covers the news in detail in two main articles on what employers need to know and whether the bill can solve existing problems. There are some interesting views from a range of experts including HR professionals and employment lawyers, so let’s hear one of our own. Anne Sammon reviewed the bill and had previously come to me via video link to discuss it. I started with one of the issues raised in one of the articles – whether employers should wait until the law comes into force before taking action:

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Anne Sammon: “I think if I were an employer I would think about implementing this now rather than waiting for legislation and part of that is because this is just a right for someone to ask for flexible working. So if you have a genuine business reason not to be able to comply, you can still refuse the request, and alongside the right to request flexible working hours we also have other protections such as indirect sex discrimination. So if you refuse a woman’s request for flexible working hours, even if she has no legal right to it, and possibly related to her inability to reconcile work and childcare needs, it could potentially be discriminatory. So I think it’s a sensible idea to look at this now and think about how you could implement it in your own organization before the legislation comes into force.”

Joe Glavina: “One of the articles quotes an HR expert who warns employers that if they introduce the law now, they will likely create a contractual right that must be honored. Do you agree (with that?”

Anne Sammon: “I’m not sure I agree that a right to flexible working hours is necessarily a contractual right. We see many policies worded in a way that makes it very clear that they are non-contractual and subject to change over time. But again, I think the other really important point is that this is just a request right, and therefore if an employee were to make a request that doesn’t work from a company’s perspective, the company can reject it, and it’s always in the been able to do so, so it’s not a major right that should really work against a lot of employers.”

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Joe Glavina: “One of the articles quotes a labor lawyer named Yvonne Gallagher and she references the possibility in the bill to apply for twice in a 12 month period a change in working conditions and she says that HR departments may have to deal with that a larger volume of inquiries. Do you agree (with that?

Anne Sammon: “I’m not sure it necessarily follows that just because an employee has the right to make two applications within 12 months, many of them will do so. I think it depends on how you deal with these flexible work requirements. My experience is that when you grant someone’s request for flexible working hours, they tend not to request another request several years later if their circumstances have changed. So I think it would be unusual for someone to submit an application 12 months from now and a second if their first application was accepted. Part of that would also depend on when you turn down a request, what is the justification you give the employee and whether it’s a reasonable and coherent one, because if you said that to someone, B. doesn’t play a role three days a week, they are unlikely to make a second request for the same matter unless you have properly explained why it is not appropriate or cannot be done. So I think part of that will depend on how employers approach their communication exercise where they decline a request and make sure they take the employee on that journey so they really understand what is and isn’t possible in the industry special role they take on.”

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Anne and the team wrote about this extensively in their out-law article, which was published shortly after the bill came out. That means, “New flexible working rights are good news for workers” and is available now on the Out-Law website. We have included a link to it in the transcript of this program.

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– Link to out-law article: “New flexible labor rights – good news for workers”

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