From day one: The flexible work changes employers must know

The government plans to introduce new legislation allowing employees further opportunities to request flexible working. On December 5, 2022, the government published its response to its flexible working consultation.

What is flexible working and what are the current rights to request it?

Flexible working is a way of working which is suited to the needs of the employee. A flexible working request may arise where an employee applies to work different days or hours or applies for flexibility relating to their role or where they work; for example homeworking or hybrid working.

The current position is that a statutory request for flexible working can only be made by an employee who has at least 26 weeks' continuous employment when they make a request. Additionally, employees are only allowed to make one request in any 12-month period. Agency workers do not have a statutory right to request flexible working unless they are returning from a period of parental leave.

What are the proposed changes to flexible working?

Under the new proposals, employees will have the right to request flexible working from day one of their employment and employers will be required to consult with an employee and explore flexible working options before rejecting a request.

Whilst employers currently have three months to respond to an employee’s flexible working request, the proposed changes will mean that they will need to respond within two months.

Under the changes, employees will have the option to make up to two flexible working requests in any 12-month period, instead of just one.

Additionally, employees will not be required to set out the impact their proposed flexible working will have on the business, as they must currently do.

The above does not change the fact that this remains a ‘right to request, not a right to be granted flexible working’ and the eight statutory business grounds on which an employer is entitled to refuse a flexible working request, will remain, these are:

• Planned structural changes
• Burden of additional costs
• Negative effect on quality
• Negative effect on performance
• Recruitment of additional staff is not possible
• Work cannot be reorganised among other staff
• Negative effect on customer demand
• Lack of work during times the employee requests to work

If you would like more guidance on whether, in specific circumstances, you could reject a request on one or more of the above grounds, our solicitors can help.

The response is silent on whether the request will need to comply with other technicalities such as being dated and stating that it is a request being made under flexible working legislation. It is hoped that this will be clarified in the resulting legislation but, in the meantime, you may take the view it is less risky to at least check with the employee whether or not they wish to have their request dealt with formally in the event that these technicalities are not complied with.

What does this mean for employers?

It is wise to be aware of your and your employees’ new obligations under the changes and to update any flexible working or related policies you have in place accordingly. Our expert employment solicitors can help you with drafting or updating these policies to ensure that they are legally compliant and specific to your business.

As the changes are likely to mean that more flexible working requests will be made, making consistent and non-discriminatory decisions when dealing with these requests is critical. You will need factual reasoning for rejection of requests in the particular case, just picking one of the eight statutory reasons is not enough. If you would like support or guidance with this, or even training for your staff members who may be tasked to deal with such requests, our employment lawyers can help.

When will changes come into effect?

This is likely to be sometime in mid-2023. Most of the changes proposed will be brought into force by the Employment Relations (Flexible Working) Bill, which must pass through Parliament to become an Act. However, making a flexible working request a day-one right is being introduced via ‘secondary legislation’ and so is likely to be quicker. You can subscribe to our newsletter here, for updates.

Conclusion

It is best to be aware of the changes to flexible working requests before they arrive. Updating policies and ensuring that management are trained in how to consistently apply them is pivotal to ensure you do not breach your obligations in this area. Our employment lawyers can assist with any questions you may have about flexible working.