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Hybrid and flexible working: what employers should know

Non-standard work arrangements are now the not-so-new normal and come with their own compliance risks. Employers need to be aware of the changing laws surrounding hybrid and flexible working, and the ways in which they can support their employees.

In this article Clayton & Brewill looks at the key differences between hybrid and flexible working and the laws that surround these increasingly common options of work.

Hybrid vs flexible working

Hybrid working is a type of flexible working, where an employee divides time between the workplace and a ‘remote’ location, usually their home. Depending on arrangements with the employer, they might work two days a week in the office, and three at home, for example. Since the pandemic, hybrid working has been more employer-led than flexible working, but employees can make an informal request for hybrid or home working as well.

Flexible working, on the other hand, is always initiated by employee request and can be about more than just location. It includes arrangements like job-shares and flexitime, or working compressed, annualised, and staggered hours. It’s something businesses have had to consider even before the pandemic.

Current laws around flexible working

The Employment Rights Act 1996 gives employees who have at least 26 weeks of continuous service the right to request a change to working hours, times or place of work, including working from home.

Employers are required to deal with requests in a ‘reasonable manner’, and in line with a statutory Code of Practice published by Acas. Whilst approval is not guaranteed, requests can only be refused on certain specific grounds, for example the burden of additional costs or detrimental impact on performance.

Changing laws

The government intends to legislate to make the right to request flexible working a day one right – rather than one that starts after 26 weeks. In addition, the Employment Relations (Flexible Working) Bill going through Parliament means that:

  • Employees don’t need to explain what impact flexible working will have on the employer when making the request;
  • Two requests can be made within 12 months (rather than one at present);
  • Available options must be explored with employees before any refusal;
  • A decision must be made by the employers within two months (rather than three). 

Discrimination risk

The changing environment brings new risks – particularly around discrimination claims and the equality agenda.

Where a request is made for hybrid, home, or flexible working, employers should always check why. If for instance it has been made on the grounds of reasonable adjustment for disability, you must comply with the Equality Act 2010.

When responding to requests for alternative working arrangements, employers should demonstrate – and document – the fact that staff are not disadvantaged because of protected characteristics. These includes age, disability, sex, race, religion, and belief. It is necessary to ensure staff are treated equally, and remote workers are not disadvantaged where new working arrangements are in place.

Your business will need to monitor areas such as staff support, training, development, and promotion regularly to give confidence that all staff are treated fairly and transparently.

Clayton & Brewill is always on hand to support employers with understanding the changing rules around hybrid and flexible working. If you require advice or assistance, please don’t hesitate to get in touch.

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