Since 6 April 2024, employees have had the statutory right to request flexible working from day one of employment. In a post-pandemic world, flexible working has become a key feature of the modern workplace. Whilst some organisations are reversing course and calling staff back to the office full-time, others are holding steadfast, espousing the benefits of flexible working. This raises the question: could and should the construction industry take better advantage of flexible working?

What is flexible working and who can make a request?

Flexible working does not just mean working from home, it includes job sharing, hybrid working, part time, compressed hours, flexitime, annualised hours, staggered hours and phased retirement. Notably, only employees have the statutory right to make a flexible working request.

How should an employee make a request?

An employee must make a request in writing. It must be dated, state that the request is made under the statutory procedure and confirm if, and when, they made a previous request.

How should an employer deal with a request?

Employers must discuss the request with the employee and provide a decision within 2 months (unless both parties agree otherwise). Employers must deal with all requests in a ‘reasonable manner’ which should include assessing the advantages and disadvantages, addressing possible alternatives and offering the opportunity to appeal the decision. The employer must also provide a business reason for any refusal. If the flexible working request is approved, the employee’s employment contract must be updated to reflect the arrangement.

On what grounds can an employer refuse a request?

A request can only be refused after consultation and must fall under one or more of eight statutory business reasons, such as:

• extra costs that will damage the business;
• the work cannot be reorganised among other staff;
• people cannot be recruited to do the work;
• flexible working will affect quality;
• flexible working will affect performance;
• the business will not be able to meet customer demand;
• there’s a lack of work to do during the proposed working times; and
• the business is planning changes to the workforce.

What are the proposed changes to flexible working?

Under proposed reforms put forward by the Labour Government, employers could soon be required to go further. The changes would introduce a reasonableness test for refusals, requiring employers to explain not just the grounds for rejection but why they consider it reasonable to refuse the request on those grounds. There may also be new regulations dictating the consultation steps before any rejection.

What are the possible benefits for the construction industry?

Flexible working could offer several benefits to the construction industry, particularly in helping to address current skills shortages by widening the talent pool. Greater flexibility may attract candidates who are put off by rigid schedules, especially those with caring responsibilities. It could also support efforts to improve diversity by enabling better access for those with caring responsibilities and creating a more inclusive environment for individuals with varying physical requirements. Flexibility is also increasingly valued by younger workers, which may help the industry appeal to a new generation of talent. Additionally, there is evidence that flexible working can reduce sickness absence, boost employee wellbeing, and support staff retention by promoting a healthier work-life balance.

What are the potential issues for both employers and employees?

It is recognised that flexible working may not always be practical, particularly for site-based roles. Additionally, some employers are concerned that flexible working arrangements may make harder to consistently meet client expectations, especially in fast-paced or high-pressure environments where meeting deadlines is imperative. In such settings, flexible working can present challenges around service delivery, particularly where reduced team cohesion impacts collaboration, slows down decision-making or disrupts workflow. Flexible working arrangements can also negatively impact training, as limited in-person interaction with supervisors and senior colleagues can hinder informal learning and reduce opportunities to ask quick questions or receive immediate feedback.

Likewise, flexible working does not always deliver the expected benefits for employees. Some individuals on part-time or compressed-hour schedules report working similar hours to their full-time counterparts in order to meet project demands and deadlines. Remote workers also face challenges related to mental and physical wellbeing, with some experiencing loneliness or difficulty maintaining clear boundaries between their professional and personal lives.

Conclusion

For many workers, flexibility has become increasingly important in supporting a healthy work-life balance. It is no longer viewed as a perk, but as a workplace norm in many sectors. In construction, a sector that continues to face challenges around recruitment, retention and diversity, there may be scope to explore more flexible working models, however, flexible working is not without its limitations. For many roles it may be difficult or impractical to implement given the need for physical presence, collaboration and responsiveness to tight project deadlines. Employers must also consider the potential impact on team cohesion, supervision, training, and service delivery.

Ultimately, whilst flexible working may offer opportunities to attract a wider talent pool and support workforce wellbeing, it is not a universal solution. A tailored approach which considers the practical realities of different roles will be essential to ensuring that both business needs and employee preferences are appropriately balanced.

For further information, or to discuss the issues raised within this case, please contact us to speak to a member of our Employment Team.