Changes to flexible working requests

The Employment Relations (Flexible Working) Act 2023 (the Act), which is expected to come into force in early/mid 2024, will make several significant changes to the statutory framework for flexible working requests. The Act does not grant an absolute right to flexible working, but instead aims to encourage discussion between employers and employees regarding how to best approach flexible working.

Taylor Walton on Flexible Working Changes

Employees with at least 26 weeks of continuous employment are currently entitled to make flexible working requests to their employer. This could be related to:

  • A change to the hours they work.
  • A change to the times when they are required to work.
  • A change to the place of work (as between their home and any of the employer’s workplaces).

What changes will be introduced?
Although not provided for in the new Act, the government in December 2023 put forward the Flexible Working (Amendment) Regulations 2023 that will remove the requirement for an employee to have at least 26 weeks’ continuous employment, providing employees with a right to request flexible working as a ‘day-one’ right from 6 April 2024. This means that an employee will be able to make a flexible working request on their first day of work after this date.

However, this right is limited to requests for flexible working – for example a newly appointed employee cannot demand that they are to work from home from day one as some media reports have implied.

The key legislative changes are as follows:

  • Employees will be allowed to make two requests (rather than one) in any 12-month period. However, it will not be possible to make a further application while another application to the same employer is already proceeding.
  • Employers will be obliged to consult with employees before rejecting a request.
  • When making a request, an employee will no longer have to explain what effect, if any, the employee thinks their requested change would have on the employer and how any such effect might be dealt with.
  • The time for an employer to make a decision will be reduced from three to two months (although it will remain open for the parties to agree a longer period).

Rejecting flexible working requests
The government will retain the current list of eight business reasons for refusing a flexible working request, which are:

  • The burden of additional costs.
  • Detrimental effect on ability to meet customer demand.
  • Inability to reorganise work among existing staff.
  • Inability to recruit additional staff.
  • Detrimental impact on quality of work.
  • Detrimental impact on performance.
  • Insufficiency of work during the periods the employee proposes to work.
  • Planned structural changes in the workforce.

The government believes that rather than placing the sole responsibility on the employee to set out the effect of their request on the employer, employers should seek to engage with employees jointly to understand the impact of the flexible working request on the business.

This is consistent with making the right to request flexible working a day-one right as a new employee would not be in a position to assess the impact of their request at the beginning of their employment.

Employers should therefore engage in dialogue with the employee and consider whether an alternative flexible arrangement that better suits the needs of the business could be adopted.

What are the legal risks?
The primary risk for employers handling flexible working requests is that employees possessing a protected characteristics may seek to bring a claim of indirect discrimination under the Equality Act 2010. For example, it has long been accepted that as women tend to have more childcare responsibilities than men, insisting that women work long or inflexible hours can amount to indirect sex discrimination.

Employers should carefully consider each request on its own individual merits but also bear in mind how they have dealt with other similar requests. This is because taking a different approach in similar circumstances may lead to complaints of unfairness and potential claims of discrimination.

The recent case of ‘Glover’ highlighted that a discrimination claim may arise as soon as a decision is perceived to have been taken. Rather than refusing at the outset, it may be safer for employers to agree to trial a requested arrangement for an agreed period. This means that if the arrangement proves to be unworkable, the employer can extract evidence to underline why this is the case. This will put the employer in a stronger position to defend any subsequent claims that follow.

New Acas Code of Practice
In response to the new legislation, Acas will be updating its statutory Code of Practice on handling flexible working requests. The Code will promote a more positive approach to flexible working and will strengthen the existing practice guidance by:

  • Extending the categories of those individuals who may accompany an employee at meetings to discuss a request;
  • Providing guidance that employers should set out such additional information as it is reasonable to help explain their decision; and
  • Providing guidance that employers should allow an appeal where a request has been rejected.

Preparing for the legislative amendments
Employers should review their existing flexible working policies and processes to ensure that they can comply with the new legislative amendments coming into force. Employers should begin considering potential issues that may arise from employees working flexibly, and how flexible arrangements would work in practice.

The changes are expected to create an increase in flexible working requests. Employers should therefore look at how long current requests are taking to process, and whether this will cause any issues once the time frame is shortened from three months to two months.

Final thoughts
The Employment Relations (Flexible Working) Act marks a significant shift in post-covid working arrangements. As with all employment matters, it makes sense for employers to seek advice and review their procedures before responding to these changes,
as and when they come into effect.

Alec Colson is a Solicitor and Head of Employment at Taylor Walton LLP and advises The Bingo Association on employment matters. He can be contacted on 01582 390470 or via email