Employees across the UK will be given even more flexibility over where and when they work, in theory at least, as the Employment Relations (Flexible Working) Bill reached Royal Assent on 20 July 2023.
Expected to come into force in 2024, The Act will require employers to consider and discuss any flexible working requests made by their employees relating to working hours or patterns including part-time, term-time, flexi-time, compressed hours, adjusting start and finish times, or where someone works, whether that be from home or a satellite office shortening their commute.
In summary, once the Bill comes into force: –
- Workers will be given the right to request flexible working from day one of a new job rather than the 26-week period of current frameworks.
- There will be new requirements for employers to consult with an employee before rejecting their flexible working request.
- Employees will be able to make two statutory requests in any 12-month period, up from one request currently.
- The waiting time for an employer to administer the statutory request will be reduced from three months to two months.
- The Bill will remove the current requirements that the employee must explain what effect, if any, the change applied for would have on the employer and how that effect might be dealt with.
Eight statutory grounds for refusing a flexible working request
Supporters of the Bill say it will enable more people to move to flexible working arrangements but crucially employers can still say no to requests on the same basis as before, although the Government hopes the Bill will encourage employers to have a more open mind and deal will any requests more quickly.
The eight statutory grounds for refusing a flexible working request will not change after the Bill comes into force. They are: –
- The burden of additional costs
- An inability to reorganise work amongst existing staff
- An inability to recruit additional staff
- A detrimental impact on quality/ offering to employers’ customers
- A detrimental impact on the employees’ performance
- Detrimental effect on ability to meet customer demand
- Insufficient work for the periods the employee proposes to work
- Planned structural changes to the business
Risk of discrimination claims
Employers should be careful to not just dismiss any flexible working requests without reasonable consideration, however, as they risk an employee bringing a discrimination or dismissal claim associated with their flexible working application.
In 2021, an Employment Tribunal ruled in favour of a mother who made a flexible working request so that she could finish work early to pick up her child from nursery and work a four-day week. Her flexible working request was declined by her employer who said the business could not afford for her to work part-time. While the 2 statutory reasons given by the employer for refusal were permissible, the facts did not support them. The employee resigned and brought a claim for indirect sex discrimination and was awarded almost £185,000 in compensation.
Flexible working request policy
The case highlights the need for employers to deal with any requests for flexible working carefully. The Bill doesn’t specify what ‘reasonable consideration’ amounts to, but we would recommend employers prepare a policy and initiate a consistent procedure for dealing with flexible working requests. This could include: –
- holding a meeting with the employee to understand their request;
- reviewing the advantages and disadvantages of the request;
- recording the business issues the employer considered when coming to a decision;
- if the request is refused, provide a clear explanation of the commercial reasoning behind that decision and offer the employee the opportunity to propose an alternative arrangement.
In 2016 just 8.7% of roles being advertised were considered flexible but according to research by Sonovate, 58% of UK businesses currently offer flexible working in some form. That’s an increase of 566% in just seven years. Flexible working is still an ongoing discussion in the workplace.
How we can help
If you need help with a flexible working request or any employment law matter please contact Laura Colebrook on e: l.colebrook@thpsolicitors.co.uk or t: 0118 338 3270.
