In our latest Employment Rights Bill article, we look at the key changes proposed to flexible working.
What is flexible working?
Flexible working refers to any working arrangement outside of the traditional in-office 9-5 model. Flexible working could involve remote working, compressed hours, and job-sharing arrangements.
All employees have a right to submit a statutory application to request changes to the number of hours they work, their start or finishing times, the days they work, and their work location.
Employers are obliged to deal with such requests in a reasonable manner, which includes taking steps to assess the advantages and disadvantages of the request, exploring potential alternatives, and allowing the employee to appeal a negative decision. If the employer does not handle a request reasonably, this can result in a claim before the Employment Tribunal.
Current legal framework
As of April 2024, flexible working became a day one right, meaning that employees can make a statutory request from their first day of employment. Employees can make two statutory requests within any 12-month period, and any requests made must be in writing. Since April 2024 employees are no longer required to explain the impact of their request when submitting their application.
Employers can refuse a request based on one or more of the following business reasons:
• Burden of additional costs
• Detrimental effect on ability to meet customer demand
• Inability to re-organise 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
A consultation must take place with the employee, unless an employer fully accepts a request. Employers must respond within two months of the request, and the ACAS Code of Practice provides guidance on what constitutes a ‘reasonable’ process.
Importantly, the right to request flexible working applies only to employees, not workers.
Key proposals in the Employment Rights Bill
Initial discussions suggested that flexible working would become the default model. However, the changes introduced by the Bill are less substantial. Penalties for non-compliance remain unchanged, with compensation capped at eight weeks’ pay (up to £5,600).
The Bill ultimately introduces two key changes to flexible working:
1. An employer can only refuse a request if reasonable to do so.
2. An employer must state the ground for refusal and explain in writing why it is a reasonable refusal, using the existing business reasons.
Implications and advice for employers
While the Bill does not go as far as making flexible working the default, it does increase the burden on employers to justify refusals to requests. The requirement to act ‘reasonably’ will become more subjective, which could lead to increased scrutiny of refusal decisions, a greater need for detailed, robust and evidence-based justifications, and an increase in Employment Tribunal claims.
To mitigate these risks and ensure compliance with the new provisions, employers should take a transparent approach to flexible working, clearly setting out policies and conducting open discussions with staff.
All decisions should be thoroughly documented, ensuring that any business reasons for refusals are expressly laid out. It is important that employers train managers on handling flexible working requests effectively. This will provide support to employees and ensure compliance with the new provisions.
Employers should also meaningfully explore alternative arrangements when refusing an employee’s request to find a solution that works for all parties.
Finally, employers should consider undertaking strategic workforce planning to assess the potential impact of flexible working requests on operational needs, ensuring adequate coverage and mitigating the risk of understaffing.
Need to know
The Employment Rights Bill will strengthen employees’ rights to request flexible working and place greater responsibility on employers to respond ‘reasonably’. While the changes are not as far-reaching as initially expected, they still mark a significant shift in how flexible working will be handled in the future.
Thorntons’ Employment Rights Bill series will provide expert insights and practical guidance on developments in the Bill’s implementation. You can get in touch with one of our experts by calling 03330 430150 or emailing us on [email protected]
