Reviewing your flexible working offering

Beefing up the statutory regime

The right to request flexible working arrangements has been part of the UK’s employment framework for many years. With the growth in hybrid working during the pandemic, it has grown in prominence. The Government is now using that momentum to help it fulfil its 2019 manifesto commitment to make flexible working “the default”.

The Employment Relations (Flexible Working) Act 2023 was recently added to the statute book and is likely to come into force about this time next year. This will enhance the statutory regime by reducing the required response time from three to two months and allow up to two requests to be made a year. It will also introduce an important new requirement to consult with employees before turning down a request.

Even more importantly, the Government has promised to pass the necessary regulations to remove the 26-week qualifying period so that the right to request becomes a “day one right” - something that couldn’t be included in the new Act for technical legal reasons.

Going the extra mile

Removing the qualifying period will be a big change, since it will in effect require employers to consider flexible working at the appointment stage. But it will still sit within a statutory regime which gives employees a “right to request”, not a “right to have”.

That is why part of the Government’s strategy is to encourage employers to go further than the statutory regime – whether by being more open to agreeing requests than the law strictly requires, or adopting a more flexible approach to agreeing changes.  With this in mind the Government has launched a call to evidence which runs until November. We can expect some new examples of best practice to emerge as a result of this process.

Creating a customised flexibility framework

Life sciences businesses are often in a better position to implement innovative flexible working regimes than organisations with more rigid or diffuse management structures. There are often fewer concerns about the impact of flexible working and setting precedents (whilst dealing with the constraints of having to be physically present to undertake lab work).  Engaging with employees about the working arrangements that suit them best, while ensuring business objectives are met, is a proven way to improve staff engagement levels.

Enhancements to the statutory scheme to consider include:

• Working out advantageous patterns of work and flexibilities that can be signposted in job adverts or even offered at the outset.
• Allowing ad-hoc arrangements to be agreed on a temporary or trial basis (the statutory regime works by creating a permanent change to the underlying contract of employment).
• Anticipating the removal of the qualifying period by entertaining applications from all employees now, rather than waiting for the law to change.
• Providing a right of appeal where requests are turned down (this is not mandatory under the statutory regime).

Developing best practice

Getting the right scheme in place is an essential starting point, but a business must also ensure it is properly administered.  ACAS is currently consulting on a revised code of practice to support the new statutory regime. As explained in the forward to the consultation:

“The updated Code seeks to encourage a more positive approach to flexible working, through a new Foreword to the Code and an emphasis on fostering an environment in which requests are not rejected by default without open-minded consideration and meaningful dialogue.”

This Code would be a good place to start for life science businesses wishing to review their procedures. It places particular emphasis on consulting with the employee in person and exploring alternatives before reaching a decision.

Conclusion

Improved flexibility is not a panacea, since recruitment and retention are driven by a number of factors, not least the total remuneration package. However, it can be an important differentiator which smaller life sciences businesses can deploy to stand out from other organisations that may have greater financial resources.