Legalities around flexible working in vet practice

COVID-19 thrust the matter of flexible working into the headlines as employers in many parts of the economy were forced to find new ways of working. However, the medical professions, being in the front line, had to serve and juggle life as best they could. Many employees, if not most, struggled.

The veterinary profession in particular has recognised the value of flexible working to its members.

Back in May 2018, the RCVS highlighted an event run by VN Futures – a joint initiative from the RCVS and the BVNA – entitled “VN Futures: flexible working – how it can benefit you and your team”. It was aimed at nurses and employers who were considering offering flexible working/job share arrangements to their teams and those who already have flexible working/job share arrangements in practice.

Fast forward to August 2020, the BVA discussed the findings of the Voice of the Veterinary Profession Autumn 2021 survey. It reported that levels of flexible working had risen in the profession in recent years, jumping from 44% in 2019 to 50% in 2021.

But the survey also showed that many vets would like to work more flexibly than they currently did. Among those who did not work flexibly, 53% would like to and even among those who already worked flexibly, 36% would like more flexibility.

In July 2023 came an RCVS note about the Diversity, Inclusion and Widening Participation Working Group of the VN Futures Project that had launched a survey to understand more about how veterinary nurses viewed flexible working – as part of a wider, flexible working campaign.

Then a month later – in August – the BVA wrote again about flexible working and what it meant to employees, employers and practices. It discussed more about the VN Futures Project.

The law

Flexible working is not anything new; the right to request it came in April 2003 in the form of the Employment Act 2002, later amended by the Flexible Working Regulations 2014. Originally, the law gave parents of children aged younger than six years of age (or of children with disabilities aged younger than 18 years of age) the right to apply to work flexibly and required employers to consider applications seriously.

Under the 2014 regulations, no right to work flexibly existed, but, rather, the right for an employee to make a request for flexible working. The regulations said that all employees with at least 26 weeks’ continuous employment could make a request – for any reason. There was nothing in the regulations, however, to stop an employee making an informal request on day one of their employment.

But change to the 2014 regulations had long been called for and in 2021, the Government announced proposals to reform flexible working.

Two years later, in August 2023, the Employment Relations (Flexible Working) Bill had passed through Parliament to subsequently receive Royal Assent. The act, when it comes into effect on 6 April 2024, will give employees the right to make two requests in any 12-month period, rather than one. They will no longer be required to explain what effect, if any, the change they are requesting would have on the employer and how this might be dealt with. Importantly, the right will apply from day one.

Additionally, when the act comes into effect, employers will be required to deal with a request within two months, rather than three, and they will be required to consult with the employee before rejecting their request. What has not changed is the legal grounds for refusal; employers will still have the same powers to deny requests as they did before.

Eight specified reasons to refuse a request exist, and these remain unchanged. They are, according to GOV.UK:

• extra costs that will damage the business
• work cannot be reorganised among other staff
• people cannot be recruited to do the work
• flexible working will affect quality and performance
• the business will not be able to meet customer demand
• a lack of work to do during the proposed working times
• not enough work for the individual to do when they’ve requested to work
• business is planning changes to the workforce

The new act will require an accompanying code of practice, which the Government’s conciliation service, Acas, is presently consulting on.

Worryingly, an Acas survey published in HR magazine last December¹ reported that 70% of employees were unaware of the new day one right to request flexible working. This survey followed on from another by a flexible working social enterprise, Timewise, which revealed 49% of workers would consider asking for flexible working from the first day of a new job.

It should be said that the NHS led the vanguard on change here when, in September 2021, contractual changes to the provisions for flexible working in the NHS Terms and Conditions of Service handbook (section 33) were made.

Under the changes, NHS employees in England and Wales and Northern Ireland, gained the right to request flexible working from day one of employment and could make more than one flexible working request per year. In addition, requests could be made regardless of the reason and without having to justify requests.

Making a request

Back to the profession, the BVA offers advice on how practices should handle requests. In its guide, BVA policy position on good veterinary workplaces, the BVA details the risks of not getting the process right, in particular, “increased staff turnover and associated recruitment costs, poor performance, an impact on animal health and welfare, and poor client satisfaction”.

The key to making a successful flexible working request is preparation. In particular, applicants should begin by checking employer policies against the statutory process. Next, they need to plan ahead when making a request as employers have up to three months to make a decision (but this will change when the new act comes into force).

Part of the planning process involves discussing the (potential) request with colleagues to garner their views as their support will strengthen an employee’s case – it may help frame the request within what is known to be acceptable.

Dealing with a refusal

This said, if an employee is dissatisfied with an employer’s decision, recourse to challenge it under flexible working legislation is and will remain limited. They may be able to take their employer to a tribunal for issues such as not dealing with a request in time, rejecting it for reasons outside of the prescribed in the legislation, or not dealing with the application in a reasonable manner.

Moreover, if a dispute over flexible working did make its way to tribunal and the employee’s claim were to succeed, the maximum level of compensation is only eight weeks’ pay, unless the employee raised other claims – for example, indirect sex discrimination or constructive dismissal. As such, the financial risk to employers for claims purely around the flexible working procedure itself is relatively low.

Summary

Flexible working has been recognised as important both from an employee perspective and that of an employer wishing to recruit and retain staff. However, while the law is about to change, both practices and employees need to think about how the process needs to be managed for the benefit of all.