HR Insight: Flexible Working and Predictable Terms & Conditions

Introduction

This year we are seeing significant changes to the rules around working arrangements. Not only have the rules around flexible working changed, but new legislation will soon be introduced that will give employees the right to ask for more predictable terms and conditions.

With the changing employment landscape in this area, it is worth taking the time to consider not only how to stay legally compliant, but consider how seizing the opportunity to become more flexible, can be advantageous to the business.

In this Hot Topic we discuss:

• The changes with flexible working rights
• New laws that allow employees to ask for more predictable terms and conditions of employment
• How flexible working and providing consistent and stable working arrangements can be a positive tool for recruitment and staff retention.

Flexible working

All employees have the statutory right to request a change to the terms and conditions of their employment, where that change relates to the hours, times and/or location of their work. The law also allows a change in location between the employee’s home and a place of business of the employer where the employee is required to work. This is known as a flexible working request.  However, the legislation recognises that an employer should be entitled to refuse a request where it does not meet the needs of the business, and so, there are certain statutory business reasons for which a refusal must be based on (discussed further on in this article).  The right is therefore to ask as opposed to having the right to have flexible working.

The right to request flexible working originated in 2003 when it was introduced as part of the Employment Act 2000.  Since then, it has evolved, and we saw the introduction of the Flexible Working Regulations 2006 introduced and since then it has evolved even further.  The latest developments introduced under the Flexible Working (Amendment) Regulations 2023 came into force for all requests received on or after 6 April 2024.  These Regulations brought in significant changes to how flexible working is managed:

You can read our article ‘Right to request flexible working’ which provides full details on this employment right, and you can access Acas’ updated Code of Practice on Flexible Working Requests here.

The right to request predictable terms and conditions

The Workers (Predictable Terms and Conditions) Act 2023 is expected to come into force later this year and could possibly be around September/October. When introduced, this Act will give employees the right to request more predictable terms and conditions of employment. 

However, before it can become enforced, there needs to be a public consultation on a new draft Acas Code of Practice and secondary legislation required to adopt the new right.

In terms of the public consultation on a new Acas draft Code of Practice, this closed at the end of January, and now Acas are analysing the responses after which, an official response will be communicated with a final agreed version of the Code of Practice published.

As it stands, what we know of the new law, and guidance set out in the draft Code of Practice is as follows:

• All workers (which means all employees, agency workers, casual staff) will have a statutory right to request more predictable terms and conditions of work where there is a lack of predictability in their work pattern.
• The draft Regulations define the work pattern as being either the number of hours worked, the days of the week worked and the times on those days worked and the period for which the worker is contracted to work.
• Where someone is on a fixed term contract that is less than 12 months in duration, they will be able to request predictable terms and conditions associated to the duration of the contract that would result in either a longer contract or would remove a provision restricting the duration.
• An employer will be required to deal with the application in a reasonable manner and within one month beginning with the date on which the application is made.
• The worker must be notified of the decision within the decision period and may only reject for one (or more of the following reasons):
  • The burden of additional costs
  • The detrimental effect on the ability to meet customer demand
  • Detrimental impact on the recruitment of staff
  • Detrimental impact on other aspects of the employer’s business
  • Insufficiency of work during the periods the worker is proposing to work
  • Planned structural changes
  • Such other grounds as the Regulations may state

When introduced, this new entitlement will be a significant development for those employers who employ employees on zero-hour contracts, fixed term contracts, or workers on a casual basis or agency workers. 

The draft Code of Practice provides guidance that is very similar to how employers are expected to manage flexible working requests (reasonable timeframe, reasonable process, statutory reasons for declining). You can read the draft Code here. 

Once a formal response has been published on the recent consultation into the draft Code, we will provide an update.

How flexibility can improve employee attraction and retention

Given the changing employment landscape in this area, it is worth taking the time to consider how seizing the opportunity to become more flexible, can be advantageous to the business. 

Not only will there be a lot of press around these new/updated rights, but we have seen since the pandemic the needs of employees have changed.  More people are looking for a different kind of working; one that can better support a work life balance and where benefits for staying with an employer are no longer all about financial benefits, but how work is carried out.

We recently published a white paper ‘Strategic HR thinking: aligning people and business strategy – an insightful guide to business growth through Human Resources.  In one chapter, it delves into the profound shift in working style of employees and organisations which has emerged in recent years, known as “asynchronous working.” This innovative approach to work has gained traction due to advancements in technology, the globalisation of the workforce and the changing expectations of employees. Asynchronous working is fundamentally different from traditional synchronous work, where everyone is expected to be online and available simultaneously.

This white paper also covers talent management in a global landscape, employee experience and business outcomes, utilising artificial intelligence, and much more. You can download your copy of the report here.

When it comes to flexible working and predictable and stable working arrangements, these are two key areas that can be a positive tool for recruitment and staff retention. 

In today's competitive talent market, UK businesses are recognising the power of flexible working arrangements to attract and retain top performers. But flexibility shouldn't come at the cost of stability. Here's how offering both can be a game-changer for your HR strategy.

Casting a Wider Net: Traditional, rigid work structures limit your talent pool. By embracing flexible options like compressed hours, remote work, or job sharing, you open doors to a wider range of candidates. This could include parents seeking better work-life balance, experienced professionals with caring responsibilities, or even those geographically restricted.

Happy Employees, Loyal Employees: Studies consistently show a link between flexible working and staff retention. Employees who feel empowered to manage their work around their lives are demonstrably happier and more engaged. This translates to lower turnover rates, saving your company time and money on recruitment and training.

Stability Breeds Trust: While flexibility is attractive, employees also crave a sense of stability and predictability. This can be achieved through clear guidelines for flexible working arrangements, ensuring everyone understands expectations and boundaries. Additionally, consistent core hours for collaboration and communication can maintain a sense of team spirit, even in a dispersed workforce.

By offering a combination of flexibility and stability, you're creating an environment that fosters productivity, loyalty, and ultimately, a competitive edge in the war for talent.

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