Historically, flexible working requests were made by parents of children under the age of six, and employees with caring responsibilities for those under the age of 18, if they needed to work flexibly due to their childcare arrangements. This included part-time work, remote working and flexibility on the start and finish time.
Where are we now?
Over the years employers have been encouraged to embrace flexible working requests and look at the benefits that acceptance of an alternative way of working brings. For example, it can improve staff retention, reduce absence rates and increase job satisfaction. However, the law has in the background had to drive these changes. In 2023, the current statutory framework provides that:
An employee with 26 weeks of continuous employment, has the right to make a flexible working request; a very different position from when the first flexible working laws were introduced in 2003.
The employee is required to make the request in writing and provide an explanation as to what impact the change would have on the employer and how the change can be dealt with.
A request can only be made every 12 months.
If the employer is unable to accommodate the request, it must provide a reason, which falls within one or more of the eight statutory grounds for refusal. The eight reasons focus on the impact the proposed arrangement may have on operational efficiency, resources (people and finances), quality and client relationship management.
The employee has a right of appeal if their request is rejected.
Employers have an obligation to respond to the request within three months.
The statutory scheme is supported by an ACAS Statutory Code of Practice - handling in a reasonable manner requests to work flexibly and ACAS guidance.
What to expect in the future?
On 20 July 2023, the Employment Relations (Flexible Working) Act 2023 received Royal Assent; the Act confirms changes that are set to become law in July 2024, which are as follows:
Employees will no longer have to explain the impact their request will have on the employer.
An employee will be able to make two requests in a 12-month period, which is up from one request.
Requests can only be refused if the employee has been consulted with.
The time for making a decision will be reduced to two months, down from three months.
A day one right to request flexible working has been proposed but this is not expressly addressed in the new legislation. However, the government intends to provide for this in future legislation.
On 12 July 2023, ACAS issued a consultation on an updated Code of Practice in anticipation of the new legislation. The new Code significantly expands on the existing one by focusing on the benefits of flexible working, employers adopting an open-minded approach and a fair and transparent process. The consultation ended on 06 September 2023. ACAS also intends to issue new guidance when the Code is published.
What should employers do?
The new rules will require employers to be more open to the possibility of flexible working and they will have to progress applications more quickly. For the time being there will be no day one right and the eight business reasons for rejecting an application will remain. However, employers need to recognise the change in legislation is likely to result in a further shift in more employees looking for flexible working, who if not supported are likely to move on. This could be problematic in those sectors faced with staff shortages. Despite this, employers still need to be able to make the right decisions for their businesses, which may mean there will be occasions where they are justified in declining a request. So, the continuation with the eight business reasons still allows the employer to make the right decisions for the effective running of their business.
FG Solicitors are here to help your business every step of the way. To find out more about how we can assist your business in managing flexible working requests or creating a policy to support the process, please contact us today on 0808 172 93 22 or complete our quick contact form for a no obligation discussion.
This update is for general guidance only and advice should be taken in relation to a particular set of circumstances.