Significant changes to flexible working and their impact on the social care sector

In summary, the laws surrounding flexible working will be updated as follows:

• A new legal duty for employers to consult with employees about alternatives to their flexible working request (currently you only have to consider the specific request made by the employee);
• Employees would no longer be required to set out how their flexible working request would impact the business;
• Two flexible working requests could be made in any 12-month period (currently only one is permitted); and
• Employers would have to respond to flexible working requests within two months (currently, you have three months).

There are no plans to change the eight business reasons that you can currently rely on to lawfully refuse a request for flexible working. However, the new duty to consult about alternatives, will create opportunities to have a greater exploration of the rationale behind a request being rejected.

There is currently no set timeframe for implementation but is likely become law next year.

Crucially the changes do not include the right to request flexible working a day one right (currently an employee must have been employed for 26 weeks). However the Government has indicated that they will create a day one right through secondary legislation, albeit no date has been set yet.

In addition to these new laws, Acas has launched a consultation on updating its Code of Practice. The draft Code of Practice not only incorporates the abovementioned changes, but is also more detailed than its previous version, which was last updated in 2014.

Acas is also proposing to update its non-statutory guidance to include information on how to be proactive with flexible working requests, how to enable an effective consultation with staff, as well as best practice in line with advances in technology and changes in workforce attitudes since the pandemic. The Code of Practice would also be strengthened to ensure employers provide as much information as possible to help the decision making process.

You can respond to Acas’ consultation by visiting their website.

The care sector is not immune from the post-pandemic push towards greater flexible working and the traditional fixed rota, fixed shift, model is coming under significant strain. Providers who embrace flexible working are finding that their staff retention improves and that they can attract more candidates. Some providers are going a step further and creating shift patterns around the requirements of their employees, thereby enabling their employees to balance childcare or caring responsibilities with their work commitments.   This can have very positive impact on recruitment and retention.

It is important to remember that flexible working means different things to different people and the key is to engage with employees on an individual basis about what working arrangements would suit them best and to assess whether they can be accommodated.

Although the changes described above will increase employee rights, they only provide for a “right to request, not a right to have” flexible working.

Prior to the new law being implemented, you will need to :

1. Update your flexible working policy
2. Review and update HR processes to accommodate the new rules
3. Provide managers with training and guidance on how to manage flexible working requests, to avoid the risk of grievances, and constructive unfair dismissal and discrimination claims.