How to Respond to a Flexible Working Request

flexible working

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Under the current law in the UK, flexible working is not an automatic right for all employees. However, imminent changes under the new Employment Relations (Flexible Working) Act 2023 will soon mean that employees will have far more flexibility over when and where they work, or at the very least, more access to request flexible working arrangements.

In this guide for employers, managers and HR personnel, we explain the rules on flexible working requests and what the new flexible working bill will mean for employers responding to flexible working requests.

 

What is flexible working?

Flexible working is a broad term and can relate to the hours people work or the pattern of those hours. It can also include flexibility over where someone works some or all of those hours. As such, a qualifying employee may apply to their employer for a variation in their terms and conditions of employment if the change relates to either the hours and times when they are required to work, as well as where they are required to work, including:

  • having flexible start and finish times, where an employee is required to work within a certain core timeframe, but can choose when to start and finish work within agreed limits
  • working compressed hours, where employees work their usual full-time hours but in fewer days, for example, compressing a 5-day week into a 4-day week
  • working varied shift patterns, where an employee alters their normal shift pattern to work a different shift pattern, such as switching from morning to afternoon shifts, or vice versa
  • working staggered hours, where an employee has different start and finish times to others
  • working part-time hours, where an employee is contracted to work full-time hours but works reduced hours, usually by working fewer working days or less hours per day
  • working solely from home, known as remote-working, or working partly from home and partly from the employee’s normal place of work, known as hybrid-working
  • splitting a full-time post into two part-time roles, known as job-sharing, with each employee working at alternate times to share the total workload.

 

What is a flexible working request?

A flexible working request refers to a formal application made by an employee for changes to be made to their working hours, times and/or location. These requests are referred to under Part 8A of the Employment Rights Act 1996 as ‘making a statutory application’.

 

What does the law say about flexible working requests?

Under the existing law, all employees have the legal right to request flexible working, provided they have worked continuously for the same employer for at least 26 weeks. In addition to meeting the qualifying service requirement, employees can only make one single application for flexible working per year during any 12-month period to the same employer, although employers can consider more than one request at their discretion.

As the law currently stands, employers with service of less than 6 months will not be legally entitled to make a flexible working request, and even those who have worked for their employer for 26 weeks in a row, having made one request, cannot make a further application for another 12 months. Once a request has been made, the employer will have up to three months to be able to reach a decision and notify the employee of this.

 

New Flexible Working Bill

The Employment Relations (Flexible Working) Bill received its Royal Assent on 20 July 2023. At some point during 2024, when the new law is likely to come into force, employees will be able to make two flexible working requests in each 12-month period, rather than one, where employers must notify the employee of their decision within two months, rather than three. Proposals for separate legislation, to be introduced alongside the Bill, will also grant employees the right to request flexible working from day one of a new job, rather than waiting until they have worked for their employer for at least 6 months.

These legislative reforms are designed to give employees better access to flexible working arrangements in the UK when it comes to when and where they work, and to boost employment protections for parents and unpaid carers, in this way helping to remove some of the barriers that people with caring responsibilities face in the workplace.

The new legislation also makes the following two additional changes to the law:

  • it introduces a consultation requirement, where employers will be required to consult with employees, as a means of exploring the available options, before refusing the employee’s flexible working request, and
  • it removes the existing requirement that employees explain what effect, if any, that the change applied for would have on the employer and how that effect might be dealt with.

In response to the new legislation, the Advisory, Conciliation and Arbitration Service (Acas) will be updating its statutory Code of Practice on handling requests for flexible working following a consultation that launched on 12 July and closed on 6 September 2023. The current Code of Practice on handling requests for flexible working was published in 2014.

The aim of the revised Acas Code will be to provide employers, employees and their legal representatives with a clear explanation of the law on the statutory right to request flexible working, alongside good practice advice on handling requests in a reasonable manner, including compliance by employers with the new consultation requirement.

 

How to respond to flexible working requests

Although the new laws will increase the number of people who can make a flexible working request, employers can still say no to requests on the same basis as before. This is because there have been no changes to the business reasons employers can use to reject a variation in working arrangements. The statutory grounds for refusing a request include where:

  • the flexible working request will result in additional costs to the business
  • the request will result in an inability to meet customer demand
  • the request will result in an inability to reorganise work amongst other staff
  • the request will result in an inability to recruit additional staff to provide cover
  • the request will have a detrimental impact on quality and/or performance
  • there will be a lack of work for the employee to do during the proposed working times
  • the employer is planning structural changes to the workforce.

However, even though employers are not legally obliged to accept a flexible working request, they must still deal with any request in a ‘reasonable manner’. This is the case under both the existing and new law around flexible working. Once the new reforms come into force, the employer must also consult with the employee who has made the request before making any decision to refuse this, where it will be unlawful for an employer to refuse the application unless they have discussed available options with the employee.

If the employer is happy to approve the request without discussion, they will not be required to consult with the employee. If a consultation is necessary, a meeting should be arranged as soon as possible so that a decision can be made within the statutory timeframe. Under the new law, the employer must reach their decision within two months of the request being made, unless a longer period is agreed between the employer and employee.

The overall net effect of the reforms should be for employers to deal with flexible working requests more quickly and efficiently, while thinking creatively about what is possible in terms of viable changes, in conjunction with the employee. Where the employer and employee have explored all available options, but the employer is unable to accommodate the flexibility requested, the employer will still be able to prioritise the needs of their business, but the employer must provide clear, written reasons for rejecting the request.

There is no express obligation under either the existing or new law for employers to offer an appeal following a refusal of a flexible working request. However, as part of dealing with a request in a reasonable manner, not least once the revised statutory Code of Practice comes into effect, employers are strongly advised to proactively offer appeals.

 

Do employers have to accept a flexible working request?

An employer is not legally bound to accept a flexible working request. However, the revisions in the draft statutory Acas Code of Practice will encourage employers to take a positive approach to flexible working so that requests are not rejected by default without due consideration, together with an open dialogue about what may be workable all round.

By recognising the importance of flexibility for the employee, and listening carefully to what they have to say, this can often help the parties to find a mutually acceptable way forward, even if the request cannot be agreed in full. For example, where an employee has asked to work from home 3 days a week and from the office 2 days a week, it may be possible for the employer to agree to a 2/3 split hybrid-working arrangement instead.

By refusing a flexible working request, at least without proper consideration or within the prescribed timeframe, an employee may bring a tribunal complaint. This could result in an order for the employer to reconsider the application and for damages of up to 8 weeks’ pay.

Additionally, any refusal of a request for flexible working may result in allegations of, and damages for, unlawful discrimination. For example, parents and carers who have their flexible working requests refused may experience discrimination if the refusal amounts to less favourable treatment because of their sex. Equally, where an employee feels that they have been discriminated against by having a request unfairly refused, they may be able to forcibly resign and claim constructive dismissal, again with a claim for compensation.

Even in cases where a refusal of a flexible working request can be justified, and is no way discriminatory, the employer runs the risk of losing valuable members of staff who are unable to balance their working life and home life with any existing working pattern.

 

Managing flexible working arrangements

Where the employer is able to approve the employee’s request for flexible working in principal, either with or without modifications to the original request, the changes to their terms and conditions must be updated in the contract of employment. The employer should also discuss with the employee how and when the changes might best be implemented, setting out in writing a statement of the agreed changes, together with a start date.

Additionally, when managing a flexible working arrangement, the employer must not only document the new working pattern, they must also take steps to monitor the arrangement. This is about clear communication between the employer and employee, making sure that the new arrangement is working in practice and if further changes need to be made.

 

How should employers prepare for the new flexible working request law?

For those employers looking to stay ahead of the game, there are a number of practical changes that can be implemented in advance of the legislative reforms coming into force. These can include updating any existing workplace policy to reflect the new law, together with suitable training for those responsible for dealing with flexible working requests.

If a flexible working request policy does not yet exist, now is the time to introduce this measure. By setting out the law and procedure in writing for making flexible working requests, this can be one of the best ways to help employees understand their rights in this context and how they can expect their request to be dealt with, at least procedurally speaking. Each request will still need to be dealt with on a case-by-case basis, but a workplace policy can at least help to instil confidence in staff that any request will be handled fairly and consistently, being given the due consideration that it deserves.

Finally, by following the guidance in the Acas statutory Code of Practice (and companion guide), including the revised code once this comes into effect, employers can minimise the various practical and legal risks when it comes to dealing with flexible working requests.

Being prepared for the new flexible working request law will not only help an employer to remain legally compliant, it will also help their business to reap the rewards, where flexible working offers significant benefits, both for employees and for businesses. In fact, research has shown companies that embrace flexible working can significantly boost their ability to attract more talent, increase retention and improve workforce diversity.

 

Need assistance?

If you have a query about responding flexible working requests, we can help. Our HR consultants and employment law advisers can support with guidance on how to deal with flexible working requests. We can also advise on what the new Bill means for your organisation an its existing flexible working policy and procedures. Contact us for specialist advice.

 

Flexible working request FAQs

Does an employer legally have to accept a flexible working request?

An employer is not obliged to accept a flexible working request, provided they deal with that request in a reasonable manner. There are several statutory grounds for refusing a request, from the burden of additional costs to planned structural changes.

Who is eligible for a flexible working request?

Currently, only employees with 26 weeks’ service can make a flexible working request although, under proposed legislative reforms, employees will soon have the right to request flexible working from day one of a new job, rather than waiting 6 months.

How do you justify a flexible working request?

The Employment Relations (Flexible Working) Act 2023, due to come into force in 2024, removes the existing requirement that employees must explain what effect the requested change would have on the employer and how that effect might be dealt with.

Last updated: 24 August 2023

Author

Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.

She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.

Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals

About DavidsonMorris

As employer solutions lawyers, DavidsonMorris offers a complete and cost-effective capability to meet employers’ needs across UK immigration and employment law, HR and global mobility.

Led by Anne Morris, one of the UK’s preeminent immigration lawyers, and with rankings in The Legal 500 and Chambers & Partners, we’re a multi-disciplinary team helping organisations to meet their people objectives, while reducing legal risk and nurturing workforce relations.

Legal Disclaimer

The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct at the time of writing, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.

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