Flexible Friends: Capitalising on the New Workplace Norm

Legislation making flexible working a more routine part of the employment landscape has just received Royal Assent. Senior Employment Associate Alice Kinder writes that although some bosses might regard it as potentially impeding productivity, more astute organisations will view the change as a way of retaining staff at a time of uncertainty in the labour market.

Given the degree of flux in how, where and when we do our jobs over the last few years, it is perhaps tempting to think of flexible working as a relatively recent development.

It has, I suppose, been confused by some people with the advent of hybrid working, ushered in during the pandemic in order to enable businesses to continue trading despite lockdown.

Flexible working, in fact, has been a legal entitlement in the UK for a couple of decades.

In 2003, rules came into force enabling working parents of children under six or disabled children below the age of 18 years to request changes to their working conditions (https://www.legislation.gov.uk/ukdsi/2002/0110441087).

Of course, it's not only those individuals with children who require such flexibility.

Back in April, one-third of individuals over the age of 50 who took part in research by the insurer Zurich - some of whom were forced to retire early due to ill health - said they would return to work if flexible arrangements were more widely available (https://www.zurich.co.uk/media-centre/cost-of-living-and-retirement).

Those findings reiterated a point made to parliament by the Chartered Institute for Personnel Development (CIPD).

It had warned that without "more inclusive employment practices" companies risked losing the experience and talent of older workers, and faced a "labour supply gap" of more than one million people (https://committees.parliament.uk/writtenevidence/82784/html/).

The issue is especially pressing, given that the UK Government has been forced to relax visa restrictions to address a skills shortage in a number of key economic sectors (https://www.theguardian.com/business/2023/jul/18/uk-visa-rules-foreign-brexit-shortages-construction).

The extent of that shortage was illustrated by figures released by the Office for National Statistics (ONS) less than a fortnight ago (https://www.ons.gov.uk/employmentandlabourmarket/peopleinwork/employmentandemployeetypes/bulletins/jobsandvacanciesintheuk/july2023).

They demonstrated that there were more than one million unfilled job vacancies in June, with industries including hospitality and financial services particularly affected.

It is perhaps timely, then, that legislation allowing more individuals to request flexible working has received Royal Assent this month.

Ministers have forecast that millions of workers stand to benefit from the new Employment Relations (Flexible Working) Bill (https://www.gov.uk/government/news/millions-to-benefit-from-new-flexible-working-measures).

Particularly eye-catching of all its provisions is the ability for employees to make two flexible working request per year - a doubling of their previous entitlement.

Bosses must also take those demands seriously and provide a reason as to why any request is rejected.

I would suggest that this is a significant milestone in that it reinforces the fact that flexible working is a new employment norm and not merely the preserve of those seeking to juggle their professional and childcare responsibilities as might have been previously assumed.

As the Government has outlined, "flexible working help individuals fit work alongside other commitments – whether it’s the school drop off, studying or caring for vulnerable friends and family".

Some employees may also wish to work flexibly to help maintain positive mental health.

Nevertheless, there may be businesses who consider having to accommodate requests as a headache which might actually impede their operations.

I would like to think, though, that they will prove to be in the minority and that most managers will recognise that it will help them retain staff at a time when recruitment is a challenge nationwide.

I should point out that there are circumstances in which requests can be legitimately refused, such as the inability to meet workload as a result with other staff or the impact on cost or customer demand.

Even so, the new legislation is equipped with teeth to ensure that rejection is wholly justified.

In the event of employers turning down flexible working requests unfairly, employment tribunals do have the power to make "just and equitable" awards to staff of up to eight weeks' pay (https://www.legislation.gov.uk/ukpga/1996/18/section/80I#:~:text=%5BF180I%20Remedies&text=(b)make%20an%20award%20of,equitable%20in%20all%20the%20circumstances).

If that was not enough, there is also the potential that rejection could be considered to be discrimination or constructive dismissal.

I would hope, though, that businesses view the legislative change as an opportunity and do not equate a desire for flexibility with someone's inability to do their job.

At a time of uncertainty in the labour market, being able to achieve a greater balance of obligations in and out of the workplace could generate the kind of staff loyalty which might make a real difference to a firm's ongoing commercial prospects.

To discuss any of the above further, please feel free to contact Alice Kinder: alicekinder@bexleybeaumont.com  |  07526 372580