Demand for flexible working has increased dramatically over the last few years. The coronavirus pandemic saw a huge shift in the way we work as many employees were forced to work from home, adapt their hours, and juggle childcare responsibilities.
As a result of this societal shift towards flexible working, government reforms to flexible working are coming to fruition.
The Employment Relations (Flexible Working) Act 2023 received Royal Assent on 20 July 2023. As a result of this legislation, the statutory entitlement to make a flexible working request will become a ‘day one’ right; the number of flexible working requests an employee can make each year will increase to two, and employers must consult with employees before rejecting a request. But the question every employer wants to know is, what has really changed?
What is the current position?
Under the current legislation, employees with at least 26 weeks of continuous service can request their employment contracts be amended to allow for flexible working. Commonly, requests include asking for a change of place of work, a move to part-time hours, or a change to working days.
Only one request can be made within a 12-month period and it must be:
- in writing;
- be dated;
- state they are a statutory request;
- specify the change sought and the date it should take effect;
- explain the impact of the change on the employer and how this could be mitigated and
- state whether a previous application has been made and when.
What are the processes that employers must currently follow?
Employers are only required to accept or accommodate some requests. However, they must respond within three months, and any refusal must fall within one of the eight statutory grounds, including:
- the burden of additional costs;
- detrimental effect on the ability to meet customer demand;
- inability to reorganise work amongst existing staff;
- an inability to recruit additional staff;
- a detrimental impact on quality;
- a detrimental impact on performance;
- insufficient work for the periods the employee proposes to work; and
- planned structural changes to the business.
A dislike of employees working part-time or because it does not fit workplace culture are not permissible reasons to reject a request and may give rise to discrimination claims. However, it is also accepted that flexible working does not necessarily suit every business and it may not be possible to agree to every request. Provided the request is dealt with fairly and adequately, it is possible to refuse a flexible working request.
What are the consequences of failing to deal with a flexible working request adequately?
Although an employee cannot bring a claim in the circumstances in which an employer has refused a flexible working request and has dealt with it fairly, an employee may bring a claim if a fair process has not been followed to seek compensation. There are also risks of discrimination claims arising where requests are not fairly and consistently treated, or where a flexible working request is linked to a protected characteristic (such as disability, or sex where managing childcare responsibilities).
What changes will the Act introduce?
The aim is to make the process less arduous, encouraging employees to make flexible working requests should they need to. The government would like flexible working to be ‘the default’. The changes will come into force in 6 April 2024 and include:
- Every employee has a statutory right to request flexible working from the first day of their employment.
- Two requests can be made by an employee within the same 12-month period, although the second request cannot be made whilst the first is outstanding.
- The employee will not have to explain the impact of the request on the business.
- The timeframe in which the employer will have to respond to the request will be reduced to two months rather than three, including any appeal.
- Consultation needs to occur with an employee before rejection of their request.
It is likely that the draft guidance will require a meeting between the employer and employee and that consideration should be given to alternative arrangements.
What other changes are there?
Statutory Code
Acas has introduced a new statutory code which supports the measures adopted. The Code sets out best practice on how to deal with flexible working requests and seeks to:
- Encourage employers to hold a formal meeting with the employee to discuss their request and consider alternative options if a request cannot be approved.
- Ensure employers set out a written decision without unreasonable delay. If a request has been rejected, employers should explain the business reasons relied upon and any additional information they believe is relevant.
- Employers should allow an appeal where a request has been rejected and provides guidance on the appeal process.
What should employers do now?
We recommend that all employers review and amend their flexible working policies and processes as soon as possible, to ensure that they do not open themselves to claims. All requests must be processed within the relevant statutory timeframe and employers must be prepared for a potential increase in the number of flexible working requests. Even with the increase in volume, statutory timelines are strict and need to be complied with.
