This newsletter explains the key points of the new statutory flexible working framework, which came into effect on 6 April 2024, as well as answering some of the common questions faced by employers.
What is meant by “flexible working”?
In England and Wales, employees are legally entitled to request flexible work arrangements. Any work schedule that differs from an individual’s normal working pattern is referred to as flexible working. This might be a request to work from home, part-time working hours, compressed hours, flexitime, and so on. A request for flexible working must be made in writing and be dated; state that it is made under the statutory procedure; specify the change which is requested; and state whether a previous request has been made.
Do employers have to agree to the changes which an employee requests?
No, but an employer can only refuse a statutory flexible working request for one of eight specific business-related justifications:
- the burden of additional costs
- the work cannot be reorganised among other staff
- inability to recruit additional staff
- detrimental impact on quality
- detrimental impact on performance
- inability to meet customer demand
- a lack of work to do during the proposed working times
- the business is planning changes to the workforce
What are the main changes to the flexible working regime?
The Employment Relations (Flexible Working) Act 2023 has brought about several changes to the flexible working regime and took effect on April 6, 2024, marking the largest alteration to the regime since 2014.
The main changes can be summarised as follows:
- Day one right - the right to request flexible working has become a day one right, so all employees have the right to request flexible working regardless of their length of service - previously they needed 26 weeks’ service.
- Mandatory consultation - it is now mandatory to consult with the employee about their request before rejecting it – if you have already decided to accept their request then you do not need to meet with them, but this should be clear in your flexible working policy.
- Two-month timeframe - the time period for the employer to make a decision on the flexible working request has been reduced from 3 months to 2 months and that includes dealing with any appeal. The timeframe can be extended by express agreement.
- Two statutory requests - employees are now limited to two statutory requests in each 12-month period (they were previously only allowed to make one).
- Impact on the employer - prior to the new rules there was a requirement for the employee to explain what effect their request would have on the employer - this has been removed.
- Revised ACAS Code of Practice - the revised statutory ACAS Code of Practice on requests for flexible working is also now in force and should be followed when dealing with these requests. The Code suggests that employers should think about what is feasible first, keeping in mind that each situation should be considered on its own facts and employers should not apply a blanket approach or policy of refusing all requests.
Should employers consider alternatives if they cannot accommodate the original request?
Yes, employers must deal with requests in a reasonable manner. Where the working pattern requested by the employee cannot be accommodated, it may still be possible to reach an agreement which satisfies both parties. Any proposed alternatives should be discussed with the employee. One option might, for example, be to permit a different working pattern subject to a trial period.
Are there any legal risks employers should be aware of?
An employee who has made a request under the statutory procedure may bring a claim on the basis that their employer has failed to follow the statutory procedure correctly, however, the greater legal risks arise, for example, where the employee making the request is returning from a period of family leave, or is making the request for reasons related to childcare commitments, or because they have a health condition which could amount to a disability for the purposes of the Equality Act 2010.
Are there any steps employers should take now?
Yes, all employers should update their flexible working policies to ensure that they reflect these legislative changes. Given that employers will now only have two months to respond to a request, they should ensure that processes are in place to review and respond to applications promptly and that managers also receive appropriate training.
How 3CS can help
We offer a range of employment law services to give you the best, most up-to-date advice. For further information on flexible working requests or any employment law matter, please get in touch with your usual 3CS contact.
