A new legal right to request flexible working from the first day of employment could expose more people to OSH risks, especially in cases where employers have failed to introduce proper oversight of working from home arrangements.
The government recently stated that it will change the law to remove the current 26-week waiting period to make a request for flexible working, although this has yet to be put before Parliament.
Other confirmed changes to flexible working legislation are detailed in the Employment Relations (Flexible Working) Bill, which received Royal Assent on 20 July.
This Act will reduce the time organisations have to respond to flexible working requests and will require them to consult with employees on requests, highlighting the importance of providing training to line managers who have a critical role in the right to request process and need to be prepared for the forthcoming changes in flexible working provisions.
As the government’s announcement of the amended legislation notes, flexible working covers everything from working hours to patterns of work, including part-time, flexi-time, compressed hours and job shares, as well as flexibility over where people can work.
After these changes come into force the government estimates an additional 2.2 million employees will be entitled to request flexible working from day one of a new job (see box below for legislative changes).
Advocates argue that improved access to flexible working would benefit a number of employee groups, most notably carers, those with a disability, and parents.
However, as Astra Emir, a practising barrister and author of Selwyn’s Law of Employment, explains, the current legislation has ‘only been tinkered with’ and many of the points she highlighted in a blog published last year remain the same.
Under the legislative reforms, for example, it is still the case that employees only have a right to request flexible working and to have that request considered in a reasonable manner. Even so, there are some changes that employers should take into account.
‘The amended legislation essentially pushes employers to engage more with employees before turning a request down, shortens the process and brings it forward to day one of employment rather than require employees to wait 26 weeks,’ explains Gemma Dale, senior lecturer at Liverpool John Moores University.
‘The practical implications will be that employers should review their internal processes. The may need to prepare for more conversations about flexible working during the recruitment process/early stages of employment and will need to give more thought to turning down a request, such as considering alternatives.’
Significantly, when the amended legislation comes into force, employers can still refuse a request on one of eight grounds set out in legislation. These tend to take into account considerations such as additional costs to an organisation rather than whether the home environment is suitable from an OSH perspective.
Interestingly, as Gemma points out, most of the statutory reasons for turning down requests to date appear to have been around the flexibility of time rather than where the employee is located.
‘What is interesting is that most work from home arrangements that have been put in place post-pandemic have not been through this formal route of application,’ she says. ‘Instead, it has been organisations moving to hybrid working at scale – often informally and without contractual change.’
Other than line managers being alert to the changes outlined in the Employment Relations (Flexible Working) Act 2023 and other forthcoming committed changes to flexible working legislation, and what this means for them in terms of the right to request process, she feels the biggest OSH risks will be felt by organisations that have failed to introduce any proper oversight of work from home arrangements. This includes providing guidance and/or equipment once employees shifted to working remotely.
The Health and Safety Executive (HSE) told IOSH magazine that because flexible working was a contractual matter, it was primarily an HR issue.
However, the regulator added that regardless of the working pattern, employers have the same health and safety responsibilities for employees whether they work from home permanently, split their time between home and the workplace (hybrid working), or are based permanently in the workplace.
Improvements in work-life balance, in the quality of working conditions, and increasing levels of independence and flexibility, facilitate workers to lead healthier and more sustainable lives
This is an issue that Joe Smith, group health and safety manager at Thomas Armstrong (Holdings), feels could have OSH ramifications further down the line, especially now that the day one request opens up the entitlement to flexible working to many more people.
‘We’re early days into this new way of working and everyone who wants it to work, because it suits their circumstances, are saying only positive things about it,’ he argues.
‘But one day something will happen that will call into question the level of responsibility the employer has for the employee’s home as a workplace.’
He also feels that greater consideration needs to be given to the mental health implications of working at home over the long-term.
‘Being isolated at home removes all the social benefits of being at work,’ he says. ‘People will make the choice to work at home because it suits child care or saves time and money.
However, it will only be years into this that mental health issues become apparent.’
Earlier this month, the Advisory, Conciliation and Arbitration Service (Acas) opened a consultation on its draft statutory code of practice on handling requests for flexible working.
As Susan Clews, Acas’ CEO, explained: ‘We are doing this to reflect the anticipated reforms to legislation, significant shift in flexible working in the workplace and changing views since our existing code was published in 2014. We will also update our non-statutory guidance, which sits alongside the code.’
The revised code is designed to give employers, employees and representatives a ‘clear explanation of the law on the statutory right to request flexible working, alongside good practice advice on handling requests in a reasonable manner’.
Acas adds that its code has been updated to encourage a ‘more positive approach to flexible working’ with an ‘emphasis on fostering an environment in which requests are not rejected by default without open-minded consideration and meaningful dialogue’.
In an interview with People Management, Andrew Willis, associate director of legal at Croner, said that tribunals will need to consider the updated Acas code when they deal with any complaints that are brought in relation to flexible working.
Speaking to IOSH magazine, Ruth Wilkinson, IOSH's head of policy, said that IOSH is exploring a response to the Acas consultation, which closes on 6 September and added that there isn’t a ‘one-size-fits-all’ approach to work-life balance and implementing flexible worker-centric models.
‘A flexible organisational culture includes being responsible, accommodating individual needs, and essentially having a whole-person management approach that values and supports people,’ she said.
‘Improvements in work-life balance, in the quality of working conditions, and increasing levels of independence and flexibility, facilitate workers to lead healthier and more sustainable lives.
'It can also lead to them experiencing greater job satisfaction and productivity, positive mental health and physical health and lower absenteeism or presenteeism’.
Ruth added that work-life balance and flexibility in working arrangements should be seen as part of performance conversations and considerations. It should start from the very beginning of employment and be an ongoing process that ‘requires human-centric leadership to be open to exploring and learning from continuing experimenting, adjustment, and adaptation’. It also needs open and constructive conversations with workers, she said.
'Aligning flexibility and protection practices need to be extended to different forms of a typical working time, to cover segments of the workforce working at night, on weekends, on shift work, or in other forms of on-call work, including the platform economy and on-demand work.’
Employment Relations (Flexible Working) Act 2023
When the new legislation comes into force, workers will benefit from the following new protections:
- New requirements for employers to consult with the employee before rejecting their flexible working request.
- Permission to make two statutory requests in any 12-month period (rather than the current one request).
- Reduced waiting times for decisions to be made (within which an employer administers the statutory request) from three months to two months.
- The removal of existing requirements that the employee must explain what effect, if any, the change applied for would have on the employer and how that effect might be dealt with.