The Employment Relations (Flexible Working) Act 2023, which received Royal Assent in July 2023, is intended to give workers more flexibility over when and where they work. This legislation is expected to come into force in the summer of 2024, based on the timescale from Royal Assent.
Chartered Institute of Personnel and Development (CIPD) research (Flexible and hybrid working practices in 2023 | CIPD) indicates that 40% of employers have seen an increase in requests for flexible working following the Covid-19 pandemic, and 66% of organisations saying they believe it is important to provide flexible working as an option when advertising jobs.
Employers and employees should therefore be mindful of the looming changes to the process surrounding flexible working requests.
- Who can make a flexible working request?
- What are flexible working requests?
- How an employee can make a flexible working request
- How an employer should deal with a flexible working request
- Employers need to stay up to date
- What could happen if I unreasonably refuse a flexible working request?
- Sex discrimination claims and flexible working
- Flexible working and constructive dismissal
Employees with at least 26 weeks of continuous employment are currently entitled to make flexible working requests to their employer. It should be noted, however, that although this has remained a requirement under the new legislation, it is anticipated that further legislation will eventually be implemented to remove this requirement, making flexible working requests a day one right for employees. Of course, any employee can make a request but employers are not obliged to consider requests unless made by eligible employees.
Flexible working requests should be made when an employee wishes to make a change to any of the following:
- the hours they work
- the times when they are required to work
- the place they work (i.e. working from home, or another of the employer’s sites).
Some examples of how these changes could be implemented in practice include:
- reducing hours to work part-time
- changing start/ finish times
- compressing hours to work the same number of hours over fewer days
- job sharing.
Employees can also request the change be limited to specific days or weeks only (e.g. only during school term time), or for a limited period such as 6 months only.
To meet the statutory requirements of a formal flexible working request, applications should:
- be made in writing
- be dated
- state that it is an application made under the statutory procedure
- specify the change the employee is seeking
- specify when they wish the change to take effect
- state if and when the employee has previously made an application.
An important change in the new legislation is, previously, there was an additional requirement for the employee to explain the effect that flexible working would have on the employer, and how the employer might deal with such an effect. This requirement has been removed by the new legislation.
Under the new legislation, employers are required to deal with requests within two months of receipt (as opposed to the previous three months), unless both parties agree to extend this period.
- the burden of additional costs
- detrimental effect on the ability to meet customer demand
- inability to reorganise work among existing staff
- inability to recruit additional staff
- detrimental impact on quality
- detrimental impact on performance
- Insufficiency of work during the periods the employee proposes to work
- planned structural changes.
The new legislation also requires employers to consult with the employee before refusing a request. The new legislation does not provide guidance around what is required in such a consultation, but the ACAS Code of Practice does contain some guidance around this. The ACAS guide also has content covering dealing with requests in a “reasonable manner”. ACAS is currently in the process of updating this code.
If a flexible working request is accepted, the employer should issue an updated statement of main terms or provide a statement of changes to employment (under section 4 Employment Rights Act 1996).
If the request is denied, the employer must write to the employee stating this, keeping in mind that under the new legislation, the employee must be consulted before a request can be denied. Employers should note that although there is no statutory right to appeal the decision, employees now have the right to make up to two flexible working requests within any twelve month period, so if an employee’s first request is denied, they are entitled to make another one.
With CIPD research showing that 49% of employers were previously unaware of the impending changes to flexible working legislation (Flexible and hybrid working practices in 2023 | CIPD), employers should ensure that they are aware of the changes as set out above. They should also consider updating any existing policies and procedures relating to flexible working arrangements to ensure that they are in line with the statutory changes and new time limits.
With the new legislation anticipated to come into force next year, we understand the ACAS Code of Practice on handling requests for flexible working is also to be updated. The purpose of the ACAS code is to “provide employers, employees and representatives with a clear explanation of the law on the statutory right to request flexible working, alongside good practice advice on handling requests in a reasonable manner” (Acas consultation on the draft Code of Practice on handling requests for flexible working | Acas).
Employers should look out for updates in relation to the new ACAS code and ensure that they are now complying with the new statutory requirements ahead of the implementation of the new Act, whilst also keeping in mind the likelihood of flexible working requests becoming a day one right.
If a tribunal upholds an employee’s complaint concerning the handling of a flexible working request, you may be required to reconsider the employee’s application. Alternatively, or in addition, the employee may be awarded compensation, additionally, issues over flexible working could also lead to other claims (see below).
A mishandled flexible working request might lead to a potential discrimination claim. For example, if your flexible working policy has a greater impact on one sex over another (or on one particular employee because of their sex) you may face claims of indirect sex discrimination.
The ACAS guidance on flexible working, mentioned above, recommends that employers and managers should avoid making assumptions when assessing flexible working requests. All requests should be assessed consistently and with regard to business circumstances.
However, acting consistently does not necessarily mean that you can adopt a blanket flexible working policy – accepting or refusing all requests. If a dispute arises, a tribunal will look at any discrepancies in the acceptances or refusals of flexible working requests.
If your policy is found to be indirectly discriminatory, it might be possible to argue that it was a proportionate means to a legitimate aim – i.e.: that there was a good business, commercial or administrative reason for the difference in treatment.
Consideration of flexible working requests should be based on real operational needs and decisions should be objectively justifiable.
In general terms, a constructive dismissal occurs where an employee feels forced to resign because of the actions of their employer.
To be successful in a claim, the employee must show that their employer has committed a fundamental breach of contract that is sufficiently serious to justify the employee’s resignation – and that the resignation was due to that particular breach. The breach could be a one-off event or just one instance in a longer history of events.
Unreasonably refusing an employee’s flexible working request, or even handling a reasonable refusal badly, could constitute one of these events and expose you to a potential constructive dismissal claim.
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