The Employment Rights Bill (Flexible Working) reached royal assent in July 2023. The Bill will allow workers to have flexibility over how they work, through changes to the law on flexible working. We considered these changes in our July 2023 edition of Workplace Law.
Since then, ACAS has launched its ‘flex at work’ campaign, aimed at supporting employers and employees to navigate the new legislation and their respective rights.
The ACAS ‘flex at work’ toolkit includes:
- Guidance on working from home and hybrid working
- Guidance on making and responding to a flexible working request
- A flexible working policy template.
We outline below the key elements of the guidance.
Working from home and hybrid working
ACAS defines hybrid working as a type of flexible working whereby an employee splits their time between working remotely and working in the office. Many employers will be familiar with hybrid working given its popularity following the Pandemic. It is important for employers to ensure that they are well-informed and following best practice when managing hybrid working.
ACAS provides a helpful framework for employers and employees in handling hybrid working requests. The guidance stresses the importance of having a transparent policy on hybrid and home working that employees may refer to. This may specify details such as how to make a hybrid working request and the relevant person to which this should be made. It is often best practice to consult employees when creating policies surrounding hybrid working to gauge how the policy may best serve both employer and employee and boost productivity.
Employers should also ensure that employees are receiving the same level of support, training and development whether they are in the office or working remotely. For instance, when dealing with a new starter, employers may arrange for an induction pack to be sent to the employees home and consider conducting on boarding on online platforms.
Managing employees working remotely
The ACAS guidance encourages employers to consult employees regarding how their performance should be managed when working remotely. Employers should consider how performance will be managed, as well as how objectives will be set and how training can be conducted remotely. Employers must tell employees how their performance is monitored and should seek to agree a clear performance monitoring policy with employees.
Employee safety and well-being and hybrid working
Employers are responsible for the overall health, safety and well-being of their employees in the workplace and when working remotely. This may take the form of conducting a health and safety assessment of employees’ home working spaces. Alternatively, employers should provide employees with suitable guidance on working safely from home. If any changes need to be made to ensure safe hybrid working, the employer will be responsible for this.
Employers should be aware of the challenges that may face those employees working remotely, such as employees feeling isolated from colleagues and feeling unmotivated. Employers should consider implementing measures such as agreeing an anchor day or regular online meetings to combat this.
Employees working from home may work longer hours or find it harder to separate work and home life. Employers must follow the law on working hours and ensure that employees are taking adequate breaks and time away from work. Establishing clear start and end times or limiting systems access after working hours may promote this.
Responding to a flexible working request
Where an employee has worked for an employer for at least 26 weeks, they will be able to make a formal flexible working request, if the employee is disabled working from home may be considered a reasonable adjustment. This guidance will be updated by ACAS in spring 2024 when the Bill comes into force.
Employers must ensure that they ask for any request made in writing and consider it fairly. The request should then be discussed with the employee and should only be turned down in the event of a valid business reason. A decision on the request should be given within three months.
In the absence of an employer specific flexible working policy the ACAS Code of Practice on flexible working requests must be followed. By implementing a specific policy, employers will be able to ensure that the framework on flexible working requests best suits their workplace and workforce.
Best practice for employers
ACAS emphasises clear, consistent policies as a priority for employers when approaching flexible working. Policies should outline key concerns such as making a flexible working request, hybrid working expenses and the measures used by employers to monitor home working employees and performance. Approaches developed to flexible working should be create in collaboration with employees to ensure employee satisfaction and foster open communication.
Recent analysis by the HR consultancy Hamilton Nash shows that employment tribunal claims concerning remote working increased by 50% from 2021 to 2022. And the number of employment tribunal claims relating to flexible working of all kinds have increased significantly since 2019. With no sign of these trends lessening, employers need to ensure that managers are well trained to deal with requests for all forms of flexible working.