Flexible Working Requests - Guest Article by John Morgan & Thomas Corcoran

With the development of new technology meaning that employees work from home more easily, and accompanying shifts in working practices during and after the Covid-19 pandemic, there has been a radical shift in flexible working practices over the past few years.

Data released by the Office for National Statistics in March this year showed that as many as four in ten London workers now work partly from home, while 19% work solely from home. Innovative practices to gain press attention include a four-day week trial last year, where over 60 UK employers tried out a 6-month 20% reduction in working hours without any reduction in wages.

Flexible working has many potential benefits for employees, such as helping them to fit work more easily around childcare arrangements and for employers, by potentially increasing employee productivity and satisfaction. There are also some potential challenges for both, including supporting the development of junior staff.

HR teams will be familiar with the ability of employees to make “flexible working requests”.

Employees with at least 26 weeks’ continuous service have a legal right to make such requests, under a statutory scheme set out in the Employment Rights Act 1996 and the Flexible Working Regulations 2014, and supported by a Code of Practice from Acas on how to respond to requests.

Under that scheme, employees could request a change to their hours of work, times they are required to work or place of work (i.e. between their home and the employers’ workplaces), so long as they make the request in accordance with certain statutory requirements.

The employer then had to deal with the application in a “reasonable manner” and could only refuse a request for one (or more) of eight statutory reasons (e.g. the burden of additional costs). Although not legally binding, the Acas Code can be taken into account by courts and employment tribunals when deciding claims relating to such requests.

The changes

The UK government has more recently made a range of changes to the flexible working regime which have just become law through the Employment Relations (Flexible Working) Act 2023 which received Royal Assent on 20 July. This provides that:

1. Employers must consult with the employee if they are considering rejecting their request. The law does not expand on how consultation should be carried out. However, the draft updated Acas Code (unlikely to be implemented before next year and still undergoing a consultation) provides some provisional guidelines for employers, including that a formal consultation meeting should be held. The draft Code states that this should:

• be held without unreasonable delay by a person with sufficient authority to make the decision;
• allow a reasonable discussion and consideration of the request, with an accurate record kept in writing;
• cover any alternative flexible working options available; and
• be approached with an “open mind” to reach a “fully-informed, evidence-based” decision.

The draft Code also states that meetings are good practice even where an employer plans to accept a request.

2. Employees will be able to make two requests in a 12-month period, instead of one as currently.
3. The period in which an employer must respond to a request has been reduced to 2 months.
4. The requirement for employees to set out in their request how the employer might deal with the effects of the request has been removed.

The timeline of these changes coming into force is to be confirmed, as separate regulations will need to be passed to bring them into force. On 20 July the government said that it expects the measures in the Act and secondary legislation to come into force approximately a year after Royal Assent, to give employers time to prepare for the changes.

What HR teams need to do

HR teams should aim to start the process of updating policies and practices as required, particularly to keep pace with any guidance in the updated Code.

They should also be prepared for a likely increase in the number of requests and ensure that HR colleagues and managers are aware of the reduced response time/duty to consult before a request is refused.

Acas’ consultation ends on 6 September 2023, and so where they have particular views, employers should look to make a response. Acas is particularly keen to hear views on what guidance should be provided on the requirement to consult before a request can be rejected.

It is important to note, however, that the changes do not currently provide a “day one” right to flexible working. The new Act does not change the existing position, which is that employees need to have 26 weeks service as a minimum before they can make a request.

This is despite the government having previously stated that it intends to bring in such a right, for which further legislation will be required (no details on such legislation have yet been confirmed). However, the draft Code anticipates this change (stating that the statutory right to request flexible working “applies from the first day of employment”), and on 20 July the government repeated that employees would be able to request flexible working from day one – so it seems the intention is still to make this change. It has been estimated that this will extend the right to request flexible working to an additional 2.2 million employees.

Employers should note that there is currently no plan to provide a default right to work flexibly, the eight statutory reasons for rejecting the request remain unaltered and it remains only a right to “request” flexible working. There remains a sensitivity around the potential for discrimination claims where requests are made by e.g. female employees seeking to vary their working hours to fulfil childcare commitments, religious observants or people seeking adjustments due to disability.

Employers should remain alive to the need to treat such requests with sensitivity and if wishing to refuse, seek advice on whether an objective justification can be made for the refusal to agree to requests in such circumstances.

 

John Morgan is a Principal Associate and Thomas Corcoran is an Associate, each in Eversheds Sutherland (International) LLP’s market leading employment, labour and immigration team.