What's the future of flexible working?

Between September and December 2021, the Department for Business, Energy and Industrial Strategy conducted its consultation on flexible working. 

The Government is analysing the information received and the expectation is that new legislation will be brought in.

In this blog we look at 5 aspects of the Government consultation through the eyes of a Microsoft Partner, asking the question, “Do Microsoft Partners want this?” and “How might it impact our industry?”

Blog contents

• Should ‘the right to request flexible working’ be a Day One right?
• Are there still  “8 business reasons for refusing a flexible working request”?
• Employer duty to suggest alternatives
• What is the administrative process underpinning the “Right to Request Flexible Working”?
• Requesting a temporary arrangement

1. Should ‘the right to request flexible working’ be a Day One right?

At present, all staff may request flexible working after 26 weeks employment with a company.

• to change times of work
• move to remote or hybrid working (between home or office) or another change to the place of work
• swap from full-time to part-time or another change to hours worked

By suggesting that this could be a Day One right, it looks like the Government might be trying to push businesses towards a flexible working model.

How could this affect Microsoft Partners?

One thought is that the current 26-week rule allows both employee and employer to get settled and create a more informed decision about how flexible working might work. Problems could arise from new starters who are seeking a flexible work schedule before they know fully how the business functions or properly understand what their role and capability will be.

Could flexible working  boost recruiting?

On the other hand, flexible working from Day One looks appealing from a recruiting standpoint as employers try to differentiate themselves in the job market. Flexible hours or remote working is seen as a bonus by 93% of jobseekers. The potential to entice new recruits could prove invaluable for growing companies, creating  opportunities that might not have been possible before e.g. due to the location of an individual in relation to the company.

However, if going forwards everyone must offer flexible working as a day one right, then there is less opportunity for employers to stand out from the crowd. This leaves some employers struggling to find ways to differentiate themselves from the competition, potentially reviewing  the benefits package they offer to draw in candidates.

2. Are there still  “8 business reasons for refusing a flexible working request”?

During lockdown, flexible (and certainly remote) working was the norm for everyone – he works here, she works there, the kids are off school and need attention – everything was up in the air. As we come out the other side of the pandemic it is important that employers regain control of their business in terms of the hours, location and workload of their staff.

The current 8 reasons an employer can use to reject a flexible working request are:

1. Extra costs that will be a burden on the business
2. Work cannot be reorganised among other existing staff
3. Additional people cannot be recruited to do the work
4. Flexible working will negatively affect quality
5. Flexible working will negatively affect performance
6. The business’ ability to meet customer demand will be negatively affected
7. There is a lack of work to do during the proposed working times
8. The business is planning structural changes.

All these reasons remain perfectly valid for Microsoft Partners to reject an application for flexible working. However, there could be a new duty for employers...

3. Employer duty to suggest alternatives

The Government wants flexible working to become an open conversation between employer and employee and is therefore requiring employers to suggest an alternative if a flexible working request cannot be accommodated in the form it is suggested.

Let’s create some hypothetical scenarios as an example.

James had a child during lockdown and wants to switch from working 5 days a week to 4. His job, however, requires him to be available for customers for all 5 days. Rather than just making a refusal under the 8 reasons, the employer is required to suggest an alternative.

Susan moved to Dubai on secondment and got stuck there during lockdown. When her secondment was over, she worked for her UK employer remotely. Now that lockdown is over, her employer wants her to return to the UK. She puts in a request to work continue to live and work remotely in Dubai. But a fundamental part of her job is hands-on in the UK. Under the proposed changes, the employer is required to suggest an alternative where possible rather than simply deny the request outright.

What kind of compromise could the employer suggest in these scenarios? This might be seen as the Government trying to do away with the 8 reasons to refuse a flexible working request?

The requirement to suggest an alternative could put employers in a difficult position, and could certainly reduce their control in terms of the management of their company. This proposed duty seems to imply that a change in the employee’s working situation is more likely to occur in one form or another if the employee requests it. However we just need to watch this space to see how high that bar might be for employers.

Are we are seeing a change in society’s views on how the relationship should look between employer and employee? We certainly are in some cases. Flat out refusals without due process and proper consideration have recently led to employment tribunals awarding damages to employees. One case saw a mother granted £185,000 for her sex discrimination claim when she was refused 5pm finishes to collect her daughter from nursery and then resigned. A steep price for the employer, it also sends a clear message of the law’s view on flexible working requests and the discrimination that can flow from a refusal to accommodate them. However, it is important to note that these outcomes depended on the specific facts of each case. See the full case here: Employment Tribunals

Given that the existing legislation requires an employer to act in a ‘reasonable manner’ in any decision that it makes, it seems unlikely that any duty of the employer to suggest or implement alternative working arrangements will be absolute. Instead, it is likely that an employer will have to show that it took reasonable steps to suggest alternatives. What will be reasonable is likely to differ according to the circumstances of each employer and employee.

4. What is the administrative process underpinning the “Right to Request Flexible Working”?

In this topic the Government are referring to the process whereby (1) an employee may only make one flexible working request per year and (2) the employer has 3 months to respond to said request.

The question the Government want to ask is, “Does this take too long?”

(1) If employees can request flexible working at multiple points in the year, it is reasonable to predict that HR departments could become clogged up with the administering these requests!

Yet, as we know, personal situations can change at a moment’s notice and having greater flexibility to request flexible working would be helpful to employees. Perhaps limiting the request per year from once to, say, two or three times per year, would strike an appropriate balance?

(2) No employer wants anything to slow their sales cycle. Three months response time from management allows for full deliberation, whereas faster administration could lead to rash decisions that might not benefit both parties. Reducing the response time would certainly help those employees who need to change working arrangements quickly. If a loved one becomes sick and needs care, you’d want to know that your employer would have your back.

5. Requesting a temporary arrangement

This is another topic up for discussion from the consultation, and frankly, it’s rather odd.

Requests for temporary arrangements are already in legislation, so why is it mentioned again? Creating a “trial period” as a test to see if new arrangements are working, is a no-brainer. The consultations say this mechanism is “under-utilized”, so maybe the Government has included this point simply to raise its profile.

Final thought for Microsoft Partners

The consultation reads as a little formulaic some of the questions are a little bit pointless and obvious; but the fact that it has been created is a clear indication that the Government is shifting towards flexible working.

It’s also clear that Microsoft Partners are also open to changes in the workspace, particularly in relation to remote working. When we surveyed Microsoft Partners early 2021, we asked if they will ever return to having all employees in the office, 69% said no.

The most interesting aspect of flexible working, from a Microsoft Partner perspective, has got to be remote/hybrid working where employees either fully or partially work from home.

Changes in employee hours vary depending on the needs of companies, for instance if your company operates helpdesk hours between 9-5, there might be no point in staff requesting a 12-9 shift.

Remote/hybrid working holds many potential benefits for Microsoft partners and the tech industry. These can include: 

• Less office space, less money spent on rent.
• As more business go hybrid/remote, they will need to move their business online and utilize software like Teams, the more potential business for Microsoft Partners.
• Remote working may improve employee productivity by as much as 13% as shown in this Stanford study.
  
  The IT industry has more than proved itself to be adaptable and pandemic proof (knock on wood). This Governments push towards flexible working models, while it might be jarring for businesses who like traditional 9-5 office life, this can surely be something that Microsoft Partners can use to their advantage.

Further reading 

• Making flexible working the default -- Gov.co.uk
• 10 tips for happy home working | Law 365