The Flexible Working Commission (the “Commission”) has published a report which recommends that employers should be able to use trial periods following a flexible work request.
The legal position
The current legal position is restrictive. Following the receipt of a formal flexible working request from an employee with caring responsibilities, the employer must follow a tight 28 day timeframe in which to consider the request, meet with the employee and a further 14 days in which to make a decision.
If the final decision is to agree to a new working pattern then that arrangement will be a permanent change to the employee’s contract of employment. The tight timeframe means that a trial period is impractical and the current legislation does not allow for it. If the employer insists on making any change to the working pattern subject to a trial period then this will be in breach of the legal requirement as the change must be permanent.
In practice many employers suggest the use of a trial period but they cannot insist upon it. If the employee agrees to a trial period and the employer considers at the end of the trial period that the working arrangement has not been a success the employer cannot make any changes (including reverting to the previous working pattern) without the employee’s express consent. As there is no right to a flexible working pattern, only to request that the employer consider it, the tendency is to refuse as the employer (who might otherwise be willing to consider it on a trial basis) will not do so if agreement means a permanent commitment.
If and when the Government extends the right to request flexible working to all employees, and they have suggested they may do so in 2015, and not just to those with caring responsibilities, the Commission has suggested that the new rules include “a clear option for employers to use trial periods for new flexible work arrangements.”
It is often unclear how a new working pattern will impact (positively or negatively) on the team or customers/clients. The law on trial periods is not supportive of employers or employees in this manner. In this sense, it is far better for the employer for any change to a work pattern to arise from an informal discussion with the employee and not from a formal and rigid flexible working request.
Perhaps an entire rethink in the way employers consider flexibility needs to be considered.
We will discuss this and other flexible working issues in our forthcoming seminar ‘How flexible is your workforce?’ to which you are warmly invited.