Upcoming changes to the law mean the right to request flexible working will be more extensive. These changes are not yet in force but are likely to be required from summer 2024.
The changes mean that an obligation will be put on employers to consult with employees before rejecting a Flexible Working Request. In addition it reduces the timeframe for considering requests from three to two months. The Government has also confirmed it will also be making the right to request flexible working a day-one right.
Employees will be able to make two statutory flexible working requests in any 12-month period. Currently, they are only able to make one.
In line with the proposed changes, ACAS has published a consultation on an updated Code of Practice for employers on handling requests for flexible working. It’s designed to encourage employers to take a more positive approach to flexible working and ensure that requests are not rejected by default.
Who can make a flexible working request?
To qualify, the request must be made in writing (such as an email), dated and state that it is a flexible working request. The employee should explain the change they would like and when they want this to apply from and detail whether any previous requests have been made (and if so, when).
What detail should be included?
If a request is in connection with childcare or caring responsibilities or to help manage an employee’s health or disability, then this should be made clear. An employer should be mindful that a refusal could be discriminatory, so should seek advice if needed.
What else should employers consider?
An employer can only refuse a request based on eight business grounds:
- the burden of additional costs for the business
- an inability to reorganise work among existing staff
- an inability to recruit additional staff
- a detrimental impact on quality
- a detrimental impact on performance
- a detrimental effect on ability to meet customer demand
- insufficient work available for the periods you propose to work
- a planned structural change to the employer’s business
So it’s sensible to think about issues in terms of these points above and discuss them at an early stage. A good practical idea is to use a trial period; this needs to be clearly defined but can also assist.
What process will an employer have to follow?
Under the proposed changes, employers will have two months to consider a request. An employer should arrange to discuss a request as soon as possible, consider it carefully and only refuse by reason of one of the eight business grounds. An employer must consult with the employee if they are considering rejection of the request. If a request is refused, an employee should be offered the right of appeal.
The proposed new ACAS Code of Practice proposes that employers in future must accept a flexible working request unless there is a genuine business reason not to. It also proposes that even where a business reason applies, employers should consider any alternative flexible working options that might be available as part of the process.
What are the legal ramifications if a request is refused?
If a request is refused and an employer has failed to follow the correct procedure, an employee may have a claim under the flexible working request legislation. These claims are limited to up to two months’ pay in compensation and are also limited to specific procedural failings.
Additionally, requiring people to work full time or in traditional patterns has the potential for indirect sex discrimination; this is due to the impact on those with caring responsibilities, which statistically tend to be women. If a request is connected to a disability, an employer may have also failed to make reasonable adjustments. It’s worth nothing that an employee is protected in law from being treated detrimentally or being dismissed because they made a flexible working request or raised a potential claim.
Claire Merritt is partner in the employment team at Paris Smith solicitors