The Right To Flex

Jane Amphlett, Head of Employment, and Annie Long, Solicitor, Howard Kennedy LLP discuss the impact of the Employment Relations Act.

There has been a seismic shift in ways of working and particularly in flexible working in recent years, most notably post-pandemic. The new Employment Relations (Flexible Working) Act 2024 (which came into force in April) reflects this and makes significant changes to the existing flexible working regime and extends the right to request flexible working in the UK. 

The changes

All employees are now entitled to make a request from the first day of their employment, replacing the previous requirement for 26 weeks’ continuous service. They may also make two flexible working requests a year (rather than only one) and the time limit for an employer to respond has reduced from three months to two, although a longer period can still be agreed. 

The Act makes it simpler for employees when making a request by removing the requirement for them to set out the impact of their request on their employer, and the ways in which the impact might be addressed. 

The basic framework for employers remains in place: they must continue to deal with requests reasonably and be mindful of potential discrimination issues. The eight statutory grounds for refusal are also the same. There is a new requirement on employers to consult with an employee before rejecting their request, although this was good practice anyway and the legislation does not set out minimum standards of consultation, require consultation to be substantive nor to cover the options available.

The Acas Code of Practice on requests for flexible working

Alongside the changes to the legislation, there is a new ACAS Code of Practice. This sets out that the intention is to encourage employers to take a positive approach to flexible working and not dismiss requests out of hand or by default. It also makes recommendations about fair process, including how to conduct meetings and appeals. The Code helpfully advises that, even if an employer is accepting a request, it should meet with the employee to discuss how it will be implemented, to maximise the chances of it working successfully in practice.

Tribunals will be able to take into account any failure to follow the Code in determining any claims for breaches of the statutory rights.

Considering the wider circumstances & potential challenges

The benefits to employers of accommodating requests for flexible working where possible, have been highlighted in recent years, particularly in attracting, retaining and motivating their workforces.

The new regime creates potential challenges for employers, with an increase in likely requests and a shorter timeframe for considering and responding to them. Employers need to consider how they will address these challenges and put in place systems for handling requests.

Where employees have been working from home a few days a week for some time, reintroducing a blanket requirement for employees to work from the office for most or all of each week is likely to lead to an increase in flexible working requests. It may make it more difficult to refuse requests based on one of the eight statutory grounds, particularly where it is hard to point to specific barriers in allowing the flexibility to continue. All flexible working requests should be dealt with on their own facts; rejecting a request because the business now requires everyone to be in the office five days a week will not be sufficient. 

The Tribunal’s role when determining a claim for a breach of the flexible working framework is restricted to reviewing the procedure followed by the employer, considering whether the request was taken seriously, whether the decision was based on correct facts and whether any refusal falls within the permitted grounds. It cannot question the commercial rationale or business reasons behind a refusal, nor substitute its own decision on whether it should be granted. To restrict scrutiny, employers should properly consider requests and ensure the reasons given to employees for rejecting their request are sufficiently considered, robust and specific to their application. 

Employers must also be mindful of the wider circumstances, employees’ rights and potential risks when considering any request for flexible working. If the employee has a disability, the employer will be under an obligation to consider and implement reasonable adjustments to working practices, which might include forms of flexible working.  Employees with caring or childcare responsibilities might equally be protected under the discrimination legislation and employers should consider whether refusing any request might give rise to claims under the Equality Act. 

Remedies for procedural failings under the flexible working regime include an order for reconsideration of the application (if the employee remains employed), as well as compensation to a maximum of eight weeks’ pay, capped at £700 a week (£5,600). But discrimination claims have no cap on the compensation which can be awarded and, in addition to the time and resources which are involved in defending claims, bring reputational risks.

Getting ready

We recommend that employers consider the following:

• Update policies and practices to include the new requirements and ensure they are fit for purpose, reflecting the recommendations in the ACAS Code. 

• As an increase in requests is likely, it would be prudent for employers to consider what is required of employees in certain roles such as how often do they need to be in the office and why, and whether there core hours when certain employees need to be available.  

• As employees will be able to make requests from day one, employers should consider how to address this during recruitment and probation. 

• Identify who will be responsible for managing requests and train them appropriately:  with the likely increase, it may no longer be feasible for HR to manage all requests and other managers may need to be enlisted and trained.  

• Requiring that all requests are forwarded to HR/this group of trained managers to deal with, will help avoid procedural failings, promote consistency and minimise unfairness.

• Train all managers on identifying requests, how the statutory flexible working scheme operates and signposting them to who will deal with flexible working requests. 

Conclusion 

The new regime gives employees greater flexibility and provides an opportunity for more people to get into and stay in work, including those with caring responsibilities and/or health conditions. This enables employers to open up recruitment to wider talent pools and create fairer and more inclusive workplaces. 

Employers should put in place systems to manage requests and carefully consider and, where the role and business operations allow, accommodate flexible working requests in order to retain a competitive edge when it comes to attracting and retaining talent and increase employee engagement.