What the Flexible Working Changes mean in practice

On 20th July 2023 the Employment Relations (Flexible Working) Act 2023 aka The Flexible Working Bill received Royal Assent resulting in proposed changes in the way a flexible working request by an employee should be handled by an employer.

The July Bill did not include the hoped for provision to have the right to request flexible working as a day one right, removing the 26 weeks continuous service qualification period. This has since been remedied under the Flexible Working (Amendment) Regulations 2023 which went to parliament on 11th December when the day one right to request flexible working was approved, thus removing the need for an employee to have 26 weeks continuous service before they could make a request to work flexibly. It is hoped this will open more meaningful conversations in recruitment processes about flexible working, rather than getting to an offer and a request being a surprise, or getting to 26 weeks and having to change ways of working.

Both the changes approved by The Flexible Working Bill and the Flexible Working Amendment come into effect for flexible working requests received on or after 6th April 2024.

What's Changed?

The key changes that will take effect are.

  • The right to make a flexible working request is now a day one employment right.
  • Two statutory requests can be made by an employee in writing, to an employer in a 12-month period and the employer is obliged to consider them, this has increased from the current one statutory request per year. However, the two requests cannot be made at the same time, meaning a second or further request cannot be made while another application/request is live.  If an employee qualifies as disabled, they can make requests to work flexibly as a ‘reasonable adjustment’, and can do that more than twice a year.
  • The time period for employers to respond to a statutory flexible working request has reduced from 3 months to 2 months, unless all agree a different time period perhaps to account for a trial period.
  • Employees will no longer be required to explain what the effect of their proposed change will have on the business, they simply make their request and it is for the employer to assess impact.  The employee is required to set out in their written application when they would like the new arrangement to take effect.
  • Employers will need to consult with employees in relation to the request and consider alternatives with the employee– this should open up conversations and explore different options.

Can A Request Be Refused?

The simple answer is yes it can.  The longer answer is yes, but there are some things you need to consider.

If someone has made two statutory requests within a 12 month period already, then you can decline to consider a further request (unless they qualify as disabled).

If someone makes their statutory requests within a 12 month period then you need to give it careful and meaningful consideration, weighing up the benefits to the employee and the business against any impact that granting the request would have on the business and colleagues.

Employers could grant the request in full or in part, or may refuse it. The employer may also propose changes to the request for the employee to consider which could include putting a trial period in place or consulting over and discussing alternative approaches if what is proposed doesn’t quite work in principle.

If an employer declines a request, they need to explain why in writing and will rely on one or more of the following reasons:

  • It will cost the business too much.
  • The business cannot reorganise the work among other staff.
  • The business cannot recruit more staff.
  • There will be a negative effect on quality.
  • There will be a negative effect on the ability of the business to meet customer demand.
  • There will be a negative effect on performance.
  • There’s not enough work for the employee to do when they’ve requested to work.
  • There are planned changes to the business (for example, the business intends to reorganise) and doesn’t think the request will fit with these plans.

If a request is rejected the employee will have the option to appeal the decision.

What Should You Be Doing Now?

  1. Ensure your Flexible Working Policy and Procedures, and associated application forms are updated to reflect the legislative changes.
  2. Publish your revised Flexible Working Policy, Procedure and associated forms so employees are aware of the changes and their statutory rights.
  3. Brief line managers and/or anyone that considers flexible working requests for employees about the changes and make sure they understand the new legislation so there is no breach of considering requests appropriately.

In the meantime, don’t forget that failure to follow the statutory obligations and therefore breach the flexible working regulations could result in a compensatory award of a maximum of 8 weeks’ pay (£5,600), effective 6th April 2024, and this would be without any other awards as a result of any discriminatory claims made to the employment tribunals.

If you need any help with updating your Flexible Working Policy, Procedure and forms, then get in touch, Metro HR would be happy to help.


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