In 2022 we saw a number of challenges for employers including a shift from office-based work to a more flexible hybrid working arrangement. 2023 does not look to be any quieter. One change currently going through Parliament is around flexible working. This article looks at the current rules for flexible working, the proposed changes.

In 2021 the government published a consultation on flexible working which set out proposals to change the current law to encourage more flexible working. From the responses received, the majority supported flexible working and the benefits associated such as better work/life balance, improved productivity and recruitment and retention. 

In December 2022, the government announced plans to introduce new law around flexible working requests. The new law is part of a package of measures to be introduced by the government with the aim of “making flexible working the default.”

Current arrangements

All employees with at least 26 weeks’ continuous employment are entitled to make a flexible working request under the Flexible Working Regulations. Only 1 request can be made under the statutory scheme in any 12 month period.

When making a request an employee needs to:

• write to their employer confirming that they are making a formal request under the flexible working legislation;
• set out the flexibility they need and the date they would like the change to apply;
• explain the effect they think the change will make to the employer and how this could be dealt with; and
• set out whether a previous request for flexible working has been made and when.

An employer will need to consider any request in a reasonable way and it will have 3 months to agree or reject the application or agree a variation to the original request. This time limit will include any appeals and if this process will take longer than three months, an extension of time to the decision period can be mutually agreed.

If an employer cannot agree to the request, a business reason must be given in line with s80G of the Employment Rights Act (the “Legislation”). The eight reasons to refuse a request are:

1. the burden of additional costs;
2. detrimental effect on ability to meet customer demand;
3. inability to reorganise work among existing staff;
4. inability to recruit extra staff;
5. detrimental impact on quality;
6. detrimental impact on performance;
7. insufficiency of work during the periods the employee proposes to work; or
8. planned structural changes.

Failure to deal with a flexible working request in a proper and fair way can result in an employment tribunal claim by an employee for discrimination which, if proven, can be expensive for an employer and also be a reputational issue. In addition, a claim for breach of the statutory procedure can be included and, if successful, an award of up to 8 weeks’ pay (subject to the statutory limit on a week’s pay) can be ordered and a tribunal may order the employer to reconsider the request. 

Proposed changes

The proposed changes currently being reviewed by Parliament include:

• An employee can request flexible working from their first day of employment
• the number of requests allowed will increase from 1 per 12 months to 2
• employers will be required to consult with their employees, as a means of exploring the available options, before rejecting flexible working request.
• the decision period will decrease from 3 months to 2 months
• the employee will no longer be required to explain what effect the requested change might have on the employer and how that might be dealt with.

When turning down a request, it is expected an employer will still need to give a business reason in line with the current Legislation.

How will the proposed changes affect employers and employees?

The new proposed arrangements are clearly to the benefit of the employee, giving them the ability to request flexibility from their first day of employment and allow them the opportunity to make 2 requests in a 12 month period. This will potentially increase an employer’s workload with less time to deal with the request. However, whilst the employee will have rights to request flexible working from the first day of employment, the business does not have to agree to this if it is not feasible and the rejection falls within one of the business reasons currently set out in the Legislation. 

When the law changes, care will need to be taken to ensure requests are dealt with promptly within the set time limits and any request is fully considered and discussed. Where a request is not to be agreed, a full consultation must take place and all steps taken clearly documented, including details around variations to the proposed changes or alternative roles, to reduce the risk of an appeal and ultimately a claim being issued. 

No date has yet been given for when the changes will come into force and it may not be this year, but employers will need to ready when changes are announced to ensure managers and HR teams are trained in how to handle requests and that flexible working policies and procedures are updated and compliant with the new law.

If you have any queries or need help with any flexible working requests, please contact Jo Cullen Head of Employment at Edwards Duthie Shamash for a free initial discussion – Josephine.Cullen@edslaw.co.uk or 020 8475 7401

The information contained in this article is provided for guidance. It is provided for your information only and should not be used as a substitute for obtaining legal advice that it specific to your particular circumstances. It is strongly recommended that you seek advice before taking action.