The growing global trend towards hybrid and remote working, along with the steady increase in flexible working arrangements, has prompted changes to legislation that now allows employees to make requests for flexible working from the first day of their employment.
From 6 April 2024 employees can now request flexible working as a day one statutory right. This reflects the substantial shift in employee demand to better balance their working lives, provide care for relatives, and prepare for retirement.
What is flexible working?
There are many different ways of working flexibly including:
- Remote working and working from home.
- Hybrid working (a combination of working remotely and in the workplace).
- Job sharing (when two people are responsible for the responsibilities and duties of one full-time role).
- Part-time hours.
- Compressed hours (working full-time hours but over fewer days).
- Flexitime (flexible start and finish times with agreed ‘core hours’).
- Annualised hours (allowing employees to respond to flexibly based on work demands).
- Phased retirement.
Who can make a flexible working request?
Qualifying employees (not workers or self-employed) may make up to two requests for flexible working within a 12-month period.
What is the process?
An employee should write to their employer outlining the changes they wish to be made to their hours, time and/or place of work. Employees are not required to give a reason for their request, although this is advisable, particularly if it relates to a disability-related adjustment.
The employer must then discuss the employee’s application with them and communicate a decision within two months. This time limit has been reduced from three months.
If the application is agreed, the employer must then write to the employee outlining the agreed changes and confirming the start date for flexible working. The employer should also update the employment contract to include the new terms and conditions.
Can requests for flexible working be refused?
Employers can refuse a request for flexible working as long as they have dealt with the application in a reasonable manner and provided a clear business reason. Reasons to reject a request would include:
- an inability to meet customer demand;
- a detrimental effect on service or performance; or
- the extra costs would be too burdensome for the organisation.
Under the proposed Employment Rights Bill, there will be a further obligation for employers to give an explanation as to why they believe it is reasonable to refuse the application.
ACAS recommend that there is a right to appeal offered. Otherwise, employees may have recourse in the employment tribunal if their employer did not handle the request reasonably, refused an application based on incorrect information, or dismissed or treated them poorly because of their flexible working request.
What are the risks of rejecting a request?
As well as the risk of mishandling the flexible request itself, which could lead to a claim for constructive dismissal, organisations potentially risk discrimination claims such as indirect sex discrimination, disability discrimination or a failure to make reasonable adjustments.
How can we be prepared and minimise risk?
Up to date policies are key, and employers should consider this in the light of the Acas Code of Practice on requests for flexible working.
To work out what may or may not work for the business in terms of changes to working hours, hybrid working and other arrangements, trial arrangements can be extremely useful, before the engagement of the statutory or formal internal flexible working regime. Many employers find this is invaluable and are surprised by the gratitude of the employee and the additional engagement that they obtain as a result of the revised arrangements.
Finally, employers should continue to be mindful of the various security risks of home working, from asset management to data privacy and cyber-security risks, it is crucial to ensure robust systems are in place to protect the business.
Summary
In an increasingly competitive recruitment market, many employees will expect flexibility and an option to work from home in many cases.
Now that requests may be made from the first day of employment, an increase in applications for changes to working patterns should be expected.
Our expert employment lawyers at Weightmans are here to help businesses comply with the recent changes. We can review your policies and procedures, advise on how to reasonably handle requests for flexible working and assist with preparing staff contracts to encompass new terms and conditions of employment. Furthermore, we regularly deliver training for managers and decision-makers who are responsible for reviewing applications, communicating outcomes and implementing changes.
If you would like more information on the subject of employees' rights when it comes to homeworking, please click below to listen to our podcast on employee's rights to homeworking.
For support in dealing with flexible working requests, contact our employment solicitors.
