13 February 2024

The right to make a flexible working request has been in existence for over 20 years, and in that time, eligibility to the right has been extended from parents and carers of young children to all employees with 26 weeks’ service. Access is about to widen again with changes coming into force this year. Accompanying the legislative changes is a new draft Acas statutory Code of Practice, subject to parliamentary approval.

The right to make a flexible working request is just that: a right to ask. Employers can refuse a request for a statutory business reason. However, employers also need to follow the statutory process, which on 6 April 2024 will be tweaked in the employee’s favour. Perhaps more significant than the penalties for failure to follow the process are the risks to an employer of a discrimination claim or damage to recruitment and retention.

In this article, we highlight different types of flexible working, the statutory request process and the ways in which it will change this year, and ways to minimize the various legal risks.

What is flexible working?

Since the COVID-19 pandemic, flexible working has become more widespread. It takes many forms, with flexibility arising in:

• when employees work, such as flexitime (time off in lieu of extra hours worked), part-time hours, annualized hours, compressed hours, and term-time-only hours;

• where employees work, such as homeworking, hybrid working, or hub-based working; and

• how roles are performed, such as by job-sharing.

The process

From 6 April 2024, the right to make a flexible working request will become a ‘day-one’ right, meaning employees will no longer have to wait until they have 26 weeks’ service with an employer before being eligible to make a request.

The new Employment Relations (Flexible Working) Act 2023 will introduce other changes that are also expected to take effect from 6 April 2024. Key aspects of the process (noting any changes from the current regime) are:

• The employee’s request must be in writing and dated, as well as specifying the change requested, when they would like this to take effect, and when (if applicable) they made any earlier request.

• The employer has a general obligation to deal with the request reasonably.

• Following the request, the employer will have two months to deal with the request (reduced from the current timescale of three months). The employer and employee can agree to extend this period.

• The employee will no longer be required to explain in their written application how the request will affect the business and how these effects can be mitigated. Instead, the new draft Code suggests that employers carefully consider the effect on the employer and the impact on the employee if the request is granted or refused.

• Unless the request is accepted in full, employers should promptly invite the employee to a meeting. The new changes will require the employer to consult the employee about the request and its potential effects. The draft Code suggests discussing alternatives if the request cannot be agreed.

• Acas advises allowing the employee to be accompanied to the meeting and giving a right of appeal against a refusal.

• Employees will be able to make two requests in a 12-month period, having previously been limited to one every 12 months. Employees will not be able to make another request if one is still in process unless two months (or longer if agreed) have passed since the ongoing process was initiated.

• The employer must inform the employee of the outcome. Acas advises this is done in writing. Any refusal can only be on specific statutory grounds. These grounds are not changing and include reasons relating to costs, customer demand, and impact on performance.

• The employee may withdraw their application. The request will be treated as withdrawn if the employee fails to attend the meeting or any appeal meeting without good reason.

Resolving a dispute

Employees can bring a claim in an employment tribunal for failure to follow the process. A tribunal may award up to eight weeks’ pay as compensation (currently capped at £643 per week) and order that the process is rerun.

With the agreement of both parties, a dispute can be referred to the Acas Arbitration Scheme.

Discrimination and other risks

Given the wide grounds for refusing a request and the limited penalties faced by employers for failing to follow the statutory process, the right to make a flexible working request has sometimes been regarded as ‘all bark and no bite’. However, employees are also protected from dismissal or being subject to a detriment because they have made a request.

If a refusal to grant a flexible working request can be shown to be a discriminatory act, there is the risk of uncapped compensation. If the request relates to an employee’s disability, a refusal could constitute a failure to make a reasonable adjustment under the Equality Act 2010. For example, an employee with anxiety which is exacerbated by crowded places may ask to change their working hours to allow them to commute at quieter times; this might (or might not, depending on the circumstances) be an adjustment the employer could reasonably make. In a different example, an unjustified refusal of a request made by a female employee to facilitate childcare arrangements could amount to indirect discrimination, because women are regarded by tribunals as usually being primary carers.

The consultation meeting which will now be required is a good opportunity to sensitively and confidentially discuss issues such as those in the examples above, so as to ensure that they are properly understood and taken into account. Employers may need to be careful about any unconscious bias at play. Decision-makers should make a habit of examining whether their decisions are tainted by any preconceptions, for example, that a young employee is likely to be less productive working from home than an older employee. Employers should also ensure that they are being consistent in their decisions.

How we can help

Not every employer will agree with Acas’s enthusiasm for flexible working, but not following the process and overlooking any potential discrimination can increase the risk of tribunal claims and employee disengagement. We can assist you in reviewing and updating your flexible working policies and advise you on minimizing any risks.

For further information, please contact the team at Synchrony Law.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.