Hybrid and flexible: live issues for employers
Non-standard work arrangements are now the not-so-new normal, and come with their own compliance risks. What are the areas to be aware of?
Hybrid working is a type of flexible working, where an employee divides time between the workplace and a ‘remote’ location – most usually, their home. Depending on arrangements with the employer, they might work two days a week in the office, and three at home, for example. Since the pandemic, hybrid working has been more employer-led than flexible working, but employees can make an informal request for hybrid or home working, as well.
Flexible working, on the other hand, is always initiated by employee request, and can be about more than just location. It includes arrangements like job-shares and flexitime, or working compressed, annualised and staggered hours. And it’s something businesses may have had to consider, even before the pandemic. The Employment Rights Act 1996 gives employees who have at least 26 weeks’ continuous service, the right to request a change to working hours, times or place of work, including working from home.
Employers are required to deal with requests in a ‘reasonable manner’, and in line with a statutory Code of Practice published by Acas, the Advisory, Conciliation and Arbitration Service. Whilst there is no automatic right of approval, requests can only be refused on certain specific grounds. These include the burden of additional costs or detrimental impact on performance.
Rules are changing
The government intends to legislate to make the right to request flexible working a day one right – rather than one that starts after 26 weeks. In addition, the Employment Relations (Flexible Working) Bill going through Parliament means that:
- employees don’t need to explain what impact flexible working will have on the employer when making the request
- employees can make two requests in 12 months (rather than one at present)
- employers must explore available options with employees before any refusal
- employers must make their decision within two months (rather than three).
The changes apply to England, Scotland and Wales (not Northern Ireland), and take effect from a date yet to be determined.
Review your discrimination risk
The changing environment brings new risks – particularly around discrimination claims and the equality agenda. Where a request is made for hybrid, home, or flexible working, check why: if made on the grounds of reasonable adjustment for disability, it means you need to comply with the Equality Act 2010. When responding to requests for alternative working arrangements, demonstrate – and document – the fact that staff are not disadvantaged because of protected characteristics. These include age, disability, sex, race, religion and belief. Make sure staff are treated equally, and remote workers are not disadvantaged where new working arrangements are in place. Your business will need to monitor areas like staff support, training, development and promotion regularly to give confidence that all staff are treated fairly and transparently.