Changes to Flexible Working Requests
The Government has been talking about making changes to flexible working for a couple of years now but has finally confirmed that from 6 April 2024, employees will have the right to request flexible working from day one of their employment. Currently, employees must have worked for their employer for a continuous period of 26 weeks before being afforded the right to request flexible working. The right will apply to all flexible working requests made on or after 6 April 2024.
It is, however, worth remembering that the right still remains a right to ‘request’ flexible working as opposed to an absolute right to work flexibly but this is an interesting development as whilst this change has been mooted on a number of occasions, it failed to form part of the package of other changes the Government announced earlier in the year, and which do not yet have an implementation date (although it is likely to be 6 April 2024 in line with the above change). These changes to the statutory flexible working regime include:
- an increase in the number of requests an employee can make during one year from one to two;
- the response time for employers to deal with any request being reduced from three to two months;
- the introduction of a new duty to discuss alternatives to the request which means that a request cannot simply be rejected without the employee having been consulted;
- the procedure for requesting flexible working will be simplified by removing the requirement for employees to set out how their flexible working request is likely to impact on their employer; and
- there will be no change to the list of eight reasons upon which the employer can reject a flexible working request.
ACAS have also announced that their updated statutory Code of Practice on handling requests for flexible working will be published next year following a consultation they carried out earlier this year. The purpose of the Code will be to support the forthcoming changes to flexible working next year but equally bring the previous Code, which is almost a decade old, in line with changes to current working practices. An Employment Tribunal is obliged to take the ACAS Code into account when determining any complaint about flexible working. ACAS has also indicated that it will update its non-statutory guidance, which sits alongside the Code, but there is no current timescale on this.
In terms of what bringing forward the right to request flexible working to day one of employment means for employers, many employers offer this right from day one in any event, but if not, it is unlikely to make very much difference to the flexible working procedure currently in place; it will simply be offered up to the entire workforce from day one. There may be an initial increase in the number of applications, however, practically, conversations about working hours usually take place and hours are agreed before an offer of employment is made, and therefore it is unlikely to be a huge influx of applications on day one until new employees are bedded in and working their normal hours. That said, employers should be reviewing their policies and procedures to ensure these are updated to reflect the forthcoming change. Similarly, managers and anyone else dealing with flexible working requests should also be made aware of the changes.
In terms of the above wider changes also likely to come in next year, whilst there will be occasions where a business is unable to accommodate a request, the initial reaction to a request should be positive bearing in mind the cost of having to recruit and train good employees to replace those who have left because their requests could not be accommodated. The new duty to discuss alternatives to the request in some respects forces employers’ hands to have that conversation but this will be an opportunity to look at other options such as trial periods etc. However, the same principles apply when it comes to rejecting any request, which is that the business needs tangible evidence in order to be able to reject any request under one of the eight grounds. It should not simply be an assertion that the proposed changes ‘won’t work’, which is likely to lead to challenges from the employee and claims of procedural unfairness on the part of the employer, discrimination and in some cases constructive unfair dismissal (where the employee has the requisite qualifying service), amongst others.