From 6 April 2024, new rules around statutory flexible working requests come into force with The Employment Relations (Flexible Working) Act 2023, which change how employees make flexible working requests and how you will need to handle them. In this FAQ, we cover all of the changes and what they mean for your business.
And remember, whether you're seeking clarification on new regulations, need assistance in implementing compliant policies, or want to minimise legal risk across your employment contracts, our expert employment law solicitors are here to help.
Contents:
- Quick recap: flexible working requests before 6 April 2024
- What is changing and when?
- What is not changing?
- Do these changes create a day one right to work flexibly?
- Can we still turn down requests for flexible working?
- What does the new requirement for consultation involve?
- When can employees make a second flexible working request?
- What if we can’t respond to a request within two months?
- Can we handle flexible working requests informally?
- Are there any penalties for getting things wrong?
- What do these changes mean for us and how can we prepare?
Quick recap: flexible working requests before 6 April 2024
Employees currently have a statutory right to make one flexible working request within a rolling 12-month period. A flexible working request means a request to change their hours, timing or place of work. The request needs to be in writing and employers must, within three months, either agree to the request, or refuse all or part of the request on one of eight business grounds. If agreed, the change becomes a permanent variation to an employee’s terms and conditions of employment, although temporary changes can be agreed too.
What is changing and when?
| Position until 5 April 2024 | Changes from 6 April 2024 |
| Only employees with 26 weeks' service can make a flexible working request. | The right to make a flexible working request will become a day one entitlement, allowing employees to request flexible working from their first day of employment. |
| Employees can only make one request in any 12-month period. | Employees will now be able to make two requests in any 12-month period. |
| When employees make their request for flexible working, they have to include an explanation of the impact that granting their request will have on your business. | Employees will no longer need to provide an explanation for the impact of their request. |
| You have three months to respond to a flexible working request. | You will only have two months to respond to a request. |
| You can refuse a request without consulting employees first. | You will need to consult employees before refusing a request. |
What is not changing?
Other than the changes outlined above, the statutory flexible working request framework is staying the same, with updated ACAS guidance to support the new changes. There are no changes to:
- General process for making flexible working requests. Employees will still need to put the request in writing and date it, describe the change they are requesting, state that it is a statutory flexible working request, give a date on which they want the change to take effect and confirm if they have made a previous request.
- The types of changes that employees can request. Employees can still only request changes to working hours, timing and place of work, although these are already very broad and would include most forms of flexible working such as part-time working, compressed hours and staggered hours.
- Ability to turn down requests. You will still be able to turn down requests on one of the eight statutory business grounds (see ‘Can we still turn down requests for flexible working?’ section below).
- Excluded categories of workers. The right to make a flexible working request will still only be available to employees. Wider categories of workers in your business such as agency workers or contractors won’t have the right to make a statutory flexible working request.
Do these changes create a day one right to work flexibly?
The changes create a day one right to make a flexible working request. They do not create a day one right to start working flexibly. You will remain largely in control of the flexible working request process because you still have to consider the request, and in some circumstances, you can turn the request down or suggest alternative arrangements subject to consultation.
Can we still turn down requests for flexible working?
Yes, you can still refuse requests, provided you consult employees before doing so. The grounds for refusal are:
- Extra costs that will damage your business.
- The work cannot be reorganised among your other staff.
- People cannot be recruited to do the work.
- Flexible working will affect quality and performance.
- Your business will not be able to meet customer demand.
- There’s a lack of work to do during the proposed working times.
- Your business is planning changes to the workforce.
If you plan to turn down any part of a flexible working request, you will need to consult the employee before you make a decision.
What does the new requirement for consultation involve?
You only need to consult employees if you plan to turn down all or part of their request. You won’t have to consult if you plan to approve the full request.
If you plan to turn down all or part of a request, consultation would involve:
- Appointing a decision-maker. The person holding the meeting should have sufficient authority to make a decision about the request. That could be someone from your HR team or a member of management in your business.
- Inviting the employee to a meeting. You will need to tell the employee in advance when and where the meeting will take place. The meeting has to take place without unreasonable delay, giving yourself and the employee enough time to prepare for the meeting whilst being mindful of the two-month timeframe for responding to the request. The meeting should take place somewhere private and you can do it in-person or over video conferencing software (or over the phone if neither of these are possible).
- Holding the meeting. The meeting should be held in a way that it allows for a reasonable discussion and consideration of the employee’s request. Good practice would be to discuss the benefits of the request or the impact of accepting or rejecting the request as well as practicalities and logistics of implementing the request. If you can’t accommodate the request in full, you should discuss the possibility of modifying the request, any other flexible working options or whether a trial period could work. Whatever the outcome of the meeting, make sure you leave the meeting with a clear record of what was discussed and agreed (if anything).
- Reflecting on the meeting. Review the original request and reflect on the discussion at the meeting. Check whether the request could be linked to a protected characteristic under the Equality Act 2010 (EqA 2010) or need for reasonable adjustments to minimise the risk of grievances and claims.
The new consultation requirement is likely to be one of the trickier areas for businesses in practice - our Employment team is available to help you through this process whenever you need support.
When can employees make a second flexible working request?
HR leaders may be concerned about having to deal with two concurrent flexible working requests from the same employee within a 12-month period. The good news is that employees won’t be able to make a second request until the first request has ‘concluded’. A request is ‘concluded’ when:
- You have made a decision about the request or appeal;
- The request or appeal have been withdrawn;
- You and the employee have agreed to dispose of the request or appeal; or
- The timeframe for considering the request or appeal ends without a decision, withdrawal or agreed disposal.
The 12-month period starts on the date the employee makes a first request and you will be able to include requests made before 6 April 2024 when deciding how many applications the employee has made in that period.
What if we can’t respond to a request within two months?
HR teams may be concerned about the new timeframe for responding to flexible working requests. Whilst you should try to respond within the new timeframe of two months, it will still be possible
to extend the timeframe, but only if the other party agrees to the extension. It would be wise to agree any extension in good time before the original 2 month deadline expires and get the agreement documented in writing. There’s no legal requirement for the agreement itself to be in writing, but the ACAS guidance recommends that you confirm the extension with the employee in writing.
Can we handle flexible working requests informally?
Whilst the flexible working request framework is a statutory scheme, you can agree to informal flexible working arrangements if you’d prefer to do so. It’s a common way to manage temporary situations such as employee bereavements. It’s also a way to handle requests from staff who are not covered by the statutory scheme, but where there may be legal risk in denying a flexible working request (eg an agency worker supplied to you has a disability and requests an adjusted working pattern for a recurring medical appointment). If agreeing requests informally, try to be consistent in how you handle requests and don’t be afraid to direct employees to the formal statutory process if that seems more appropriate.
Are there any penalties for getting things wrong?
It’s important to be aware of the types of claims employees can bring in an employment tribunal relating to their flexible working request. Some claims relate specifically to the statutory flexible working framework, whereas others relate to general employment law rights.
If the claim relates to a procedural failure under the statutory framework (eg failing to make a decision within two months or not handling the request in a reasonable manner), an Employment Tribunal can order you to reconsider the request and / or award up to eight weeks’ compensation to the employee.
Employment Tribunals can award higher levels of compensation for other types of claims. For example, employees can bring claims for unlawful detriment and automatic unfair dismissal where they have been subjected to detrimental treatment or have been dismissed for making or planning to make a flexible working request. They can also bring discrimination related claims under EqA 2010 (eg an employee requested adjusted working hours as a reasonable adjustment for a disability and an employer refused the request).
What do these changes mean for us and how can we prepare?
The changes make it easier for employees to make flexible working requests from their first day of employment in your business. As a result, you may see more flexible working requests than you did previously. The new requirement to consult employees before turning down requests and the narrower timeframe for making a decision about the request means that businesses will need to be even more proactive in handling flexible working requests. To prepare for the changes:
- Update policies and procedures. Refresh your flexible work policy or staff handbook to reflect the upcoming changes. Build a system for logging flexible working requests so that you can easily check how many requests an employee has made in a rolling 12-month period.
- Train staff on the upcoming changes. HR teams will need to be particularly aware of the new two-month time frame for handling flexible working requests. Consultation will likely be familiar to most HR professionals (eg in the context of redundancies and TUPE), but it would be helpful to address the specific consultation requirements under the flexible working framework.
There has been a raft of changes to employment law rights in recent weeks and months. Our expert employment solicitors are on hand to support you with anything covered in this FAQ or indeed any other changes.
