Flexible working has become the new norm for many workers in the UK particularly since the Covid-19 pandemic, which resulted in a drastic increase in the implementation of flexible working practices such as hybrid working, flexi-time and working from home. With statistics published by the Equality and Human Rights Commission reporting that 8.7 million full-time workers want to work flexibly, employers need to stay up-to-date on the law surrounding flexible working requests, particularly as legislative reform is on the horizon.
What is the current law on flexible working requests?
Under Part 8A of the Employment Rights Act 1996 and the Flexible Working Regulations 2014, an employee with 26 weeks’ continuous service can make a written request to their employer for a change in the terms and conditions of their employment if the change relates to:
1. the hours they are required to work;
2. the times when they are required to work;
3. where they are required to work, as between their home and any of the employer’s workplaces; or
4. such other aspect of their terms and conditions of employment as the Secretary of State may specify by regulations.
In the request, the employee is required to explain what effect, if any, the employee thinks making the change applied for would have on their employer and how, in their opinion, any such effect might be dealt with.
The employer must deal with the application in a “reasonable manner” and is obliged to respond to the employee’s request within 3 months (unless it is extended by agreement).
The employee is then prevented from making a further request for a change in the terms and conditions of their employment for 12 months from the date of their first application. The date of the application is deemed to be the date that it is received by the employer.
On what basis can an employer refuse a request?
The legislation sets out that an employer can refuse a request on the basis of one or more of the following eight reasons:
• the 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; and
• planned structural changes.
When can an employee present a complaint to an employment tribunal?
An employee can complain to a tribunal if the employer:
• fails to deal with their application in a reasonable manner;
• fails to notify the employee of the decision on the application within the decision period;
• basis the decision to reject the application on incorrect facts;
• fails to rely on one of the statutory grounds when refusing the application;
• treats the application as withdrawn when the grounds entitling the employer to do so do not apply.
What are the remedies?
Where an employment tribunal finds a complaint to be well founded, it will make a declaration to that effect and may:
1) make an order for reconsideration of the application; and
2) make an award for compensation to be paid by the employer to the employee.
The Government published its response to the flexible working consultation on 5 December 2022, and confirmed that the following legislative changes would be made:
- removal of the requirement for employees to have a minimum length of continuous service and instead make it a day one right to request flexible working
- removal of the requirement for employees to explain in their applications what effect they think the change would have on their employer;
- allow employees to make two flexible working requests every 12 months rather than one;
- a requirement that employers have to consult with an employee before being permitted to refuse their application; and
- reducing the deadline for an employer to respond to the request to 2 months rather than 3 months.
The Employment Relations (Flexible Working) Bill 2022-23 was introduced on 15 June 2022 by Labour MP Yasmin Qureshi. The Government has confirmed its support for the Bill, which makes provision for the legislative changes that the Government confirmed would be made, except for the proposed day one right to request flexible working. The day one right is thought to instead be introduced by way of secondary legislation after the Bill is passed.
The Bill has been making its way through the Houses of Parliament and is now proceeding to the second reading in the House of Lords. Should the Bill come into effect, it is hoped that it will, “ensure more people can access flexible working and act as a catalyst to address the barriers faced by women, the disabled, carers and older people.”
What do employers need to do?
In light of the anticipated legislative reform, employers will need to be aware of the implications that such changes could have on their company and consider the actions they will have to take to ensure they are adhering to legislation.
Employers will need to consider reviewing any flexible working policies they have, communicating with employees on their rights where necessary and providing training to HR staff as to how to deal with flexible working requests.
Farleys Solicitors are experts in advising both private and public sector employers on a wide range of employment law and HR matters. For advice and assistance contact our expert employment and HR team on 0845 287 0939 or complete our online contact form.