‘Building back better’ – the future is flexible

The UK Government’s 2019 manifesto committed to encourage flexible working and consult on making it the default unless employers have good reasons not to. Subsequently, the COVID-19 pandemic has had a dramatic impact on working patterns, resulting in a shift to homeworking for much of the working population.

Against this background, in June 2021, the Department for Business, Energy and Industrial Strategy announced that it would launch a consultation focusing on proposals to reform the Flexible Working Regulations 2014, to make flexible working the default. The consultation opened on 23 September and will close on 1 December 2021, with any changes unlikely to come into force until mid-to-late 2022.

The consultation sets out five proposals on which views are sought, namely:

• Removing the 26-week qualifying service period for the right to request flexible working. Rather, the right to request flexible working to be a day one right.
• Whether the eight current business reasons outlined in the Employment Rights Act 1996 for refusing a request for flexible working should remain valid.
• The need for employers to propose alternatives if they refuse an employee’s request.
• Changing the administrative process required for flexible working, by allowing more than one request every 12 months and reviewing the three-month response period currently mandated.
• How the right to request a temporary flexible working arrangement could be better utilised.

The UK Government has also announced that it intends to introduce a right for unpaid carers to take one week’s unpaid leave per year. This plan will be brought forward when parliamentary time allows.

What does this mean for businesses and their insurers?

Employment law perspective

For now, nothing has changed and the title of the government’s consultation, “making flexible working the default”, is arguably a little misleading.

It is also important to note that the government’s proposals do not give employees the right to work flexibly – they represent a re-positioning of the existing right to request it and the consultation acknowledges that a one size fits all approach is not workable. As is currently the case, what is reasonable to accommodate for one employer may not be reasonable for another, when the size and resources of the business are taken into account.

The government’s position remains that employers should be able to reject requests where there is a sound business reason to do so, and whilst the consultation includes some discussion around whether the existing eight reasons for refusal should be changed, there appears to be little appetite to make fundamental changes here so employers can expect to continue to base decisions on the existing grounds which will now be familiar to them.

Although the proposals do not envisage a right for individuals to request flexible working before the employment relationship has started, businesses would be well-advised to consider job descriptions and be prepared for flexible working discussions in the recruitment process. Once the employment relationship has commenced, there will be (or should be) discussions between employer and employee after a flexible working request has been made, which may prove to be more difficult on day one, given that the employee will not have any experience of the role or the way the business works at that stage. The proposals also suggest that if a request is refused, the employer will need consider alternative arrangements. Whilst this is not currently a statutory requirement, most employers will already be doing this so as to minimise the risk of claims for indirect discrimination and otherwise act reasonably.

Whilst the pandemic has undoubtedly meant that many businesses have been more open to flexible working than they may have been previously, the move to a day one right and the proposed lifting of the ‘one request per 12 months’ rule clearly have the potential to impose an increased administrative burden on the employer and with more requests, comes the potential for more claims.

Health and safety perspective

With more and more people now working from home, businesses need to ensure that there are sufficient safeguards in place to protect their workforce, whilst working from home, from risks to their health, safety and welfare. The Health and Safety at Work etc. Act 1974 (HSWA) sets out the overriding duties owed by employers to their employees and those affected by its undertaking e.g. agency workers, consultants etc.

This duty equally applies to those who are office based, site based or working from home. The first step businesses are required to take in order to discharge their duties under HSWA, is to undertake a ‘suitable and sufficient’ assessment of the risks to the health and safety of their workforce to which they are exposed at work. Once they have done this, they must then look at implementing control measures to either eliminate the risks or where this is not possible, to reduce the risks to as low level as is reasonably practicable.

This duty is not a new one, but how it is managed on a practical level in a flexi-working world may be new territory for employers. From conducting a risk assessment of an employee’s flexible working arrangements, to PAT testing relevant electrical equipment, to issuing appropriate work equipment to work remotely, employers will need to carefully consider the implications of the many flexi-working permutations their workforce could adopt. Co-operation from the workforce will be key to ensuring employers receive all relevant information so they can safely organise and facilitate any changes to flexible working.

Employers’ liability perspective

Staff shortages are currently well reported in the haulage, farming and hospitality sectors. The desire for flexible working is anticipated to be a future driving force for many job candidates. It is therefore foreseeable that a business’ ability to recruit/retain its employees may be hampered if they have poor statistics regarding their allowance of flexible working requests.

It is possible that employer liability or public liability claims will arise due to staff shortages. Understaffed businesses are at risk of being unable to operate in the same/safe way that they previously did. This can result in corners being cut and injuries occurring. Staff shortages can also expose businesses to a risk of stress claims being made by the existing/reduced workforce.

Businesses who are short staffed may well be of the view that ‘something is better than nothing’ and therefore have a desire to approve flexible working requests in order to retain staff. However, each time a flexible working request is approved, the employer will need to revisit their relevant risk assessment(s). The business will have to balance the impact approving the flexible working request will have on the existing workforce’s stress levels and the businesses ability to retain a safe working environment for their entire workforce.