Bending to flexible working requests
Sarah Buxton explains the changes to regulations around employees’ right to request flexible working and how to deal with them.
On 6 April 2024, the new rules on the right to request to flexible working came into effect. The statutory request allows employees to request changes to their terms and conditions of employment in relation to their hours, times or place of work. The changes that are now in force will mean that employees will have better access to flexible working.
One of the biggest changes to the right to request flexible working, is that it will apply from day one of employment for all employees. The new legislation removes the requirement for an employee to have 26 weeks’ continuous service before they can make a formal flexible working request, making it a ‘day-one’ right.
Employees are now able to make two applications within any 12-month period, whereas previously only a single request was permitted. Although employees are now able to make two applications, they are only able to have one live request at one time. A request is still considered to be live during an appeal.
Responding to requests
Once an employer has received a request from an employee, the employer should meet with the employee to discuss the request. An employer is unable to reject a request without consulting with the employee first and this should be done without unreasonable delay.
An employer must handle every request in a reasonable manner, and it is best practice to deal with the request as soon as possible. The new updates mean that an employer is required to respond to a request within two months unless an extension is agreed with the employee, which has reduced from the three months previously allowed.
Rejecting a reuqest
A request for flexible working must only be rejected if there is a genuine business reason to reject the request. The eight genuine business reasons are set out under the Employment Rights Act 1996:
- It will cost your business too much
- You cannot reorganise the work among other staff
- You cannot recruit more staff
- There will be a negative effect on quality
- There will be a negative effect on the business’ ability to meet customer demand
- There will be a negative effect on performance
- There’s not enough work for your employee to do when they’ve requested to work
- There are planned changes to the business, for example, you intend to reorganise or change the business and think the request will not fit with these plans.
In the recent employment tribunal decision in Miss Wilson versus Financial Conduct Authority (FCA), the claimant made a formal request to work entirely remotely. The FCA claimed that if the claimant worked entirely from home, it would have a detrimental impact of quality and performance.
They rejected her request due to the negative impact the requested working arrangement would have on her team.
However, the FCA did not reach a decision until the statutory period had expired. The tribunal awarded the claimant one week’s pay as compensation due to the breach of the statutory time limit. However, the tribunal held that the decision was not based on incorrect facts, as the claimant had argued, and FCA was entitled to refuse the request.
Updated guidance
In light of these changes, ACAS (the Advisory, Conciliation and Arbitration Service) published an updated version of its Code of Practice on requests for flexible working on 6 April 2024. This sets out what is required under statute but also what is best practice when dealing with a request for flexible working.
As an employer, it is likely that you may see more flexible working requests than you have done previously as the change means that employees will be able to make a request from their first day of employment and they are entitled to make two requests within any 12-month period.
The time limit for dealing with a request has also decreased, therefore, you need to ensure that you deal with employees’ requests efficiently and within the two-month period.
You should ensure that you update your policies and procedures to reflect the change to the law on flexible working.
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