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Embracing Flexible Working, a Cautionary Tale for Businesses Post-Amendment

Businesses should avoid making rash decisions over flexible working requests in light of recent amendments to the Employment Rights (Flexible Working) Act 2023, which now gives staff greater rights when it comes to requesting flexible working, says Crown Workforce Management’s flexible working consultant Neville Henderson.

Agreeing to too many flexible working requests could impact one’s ability to meet customer demand, while rejecting a request without an evidence-based reason, could now land a business in legal trouble, argues Neville, who is urging all businesses to collate evidence on how flexible working will impact them.

A key learning from the Covid pandemic was that many businesses and employees realised they could work flexibly; whether that is at home or different shift patterns – and it has fast become a culture and way of working that has continued to grow.

It was therefore hardly surprising to see recent amendments to the Employment Rights (Flexible Working) Act 2023, which acknowledged that flexible working is very much here to stay.

The change that will have the most impact on businesses is the need to now provide an evidence-based reason for declining a flexible working request as part of a consultation process with staff – whereas before the decision could simply be declined.

Examples of Evidence-Based Reasons Performance

Considerations for approving or declining flexible working requests include the cost to the business or impact on quality, performance or ability to meet customer demand.

If anything, this law change should serve as a wake-up call to businesses that they now need to be using data rather than the tradition of a ‘9 to 5’ working pattern as the starting point when managing their workforce.

If they don’t, they run a real risk of not only losing their best talent, but struggling to attract the right people too – not to mention potentially facing legal action.

Adopting flexible working isn’t a case of flicking a switch though – homework needs to be done to understand when an organisation’s demand profile is i.e. its peaks and troughs, as well as talking to line managers “on the ground” to understand how adopting new ways of working would impact day-to-day operations.

I can think of one example where a business that was in a remote location had a 250-strong workforce, but had more than 60 staff working differently through flexible working requests being granted almost ad hoc, which impacted their ability not only to keep track of the comings and goings on their site but also to meet demand – but the business had agreed to them because they were struggling to recruit, and so wanted to please their staff.

While it may be tempting for businesses who are struggling to fill vacancies to advertise flexible working as a benefit, it needs to be based on data and evidence, otherwise it could risk the long-term viability of an organisation.

As the world of work becomes inevitably more complicated it is no doubt that a good workforce management system can help organisations see the wood for the trees. Likewise, a useful option for businesses is to explore using workforce scheduling software, which can use rules pre-set by businesses to ensure staff with certain skillsets are in a particular location or on-shift at any one time. This option is by far the most sensible for organisations with larger workforces.

The government, in my opinion, has made the right call in making this evidence-based amendment to refusing flexible working, as it will force all businesses to look at the data to understand how changes to their workforces will impact their day-to-day operations – both for better and worse.

About Neville Henderson Neville Henderson

Neville Henderson is a working time consultant who has been at the forefront of design and implementation of new ways of working for more than 20 years, from complex annualised hours systems to simpler shift pattern changes.

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