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The updated legislation means that employers will now need to react better and faster to flexible working requests. They will need to consult with the employee (unless you’re going to say yes straightaway to the request) and importantly you’ll need to make a decision within two months of the employee’s initial request.
Employees no longer have to explain the effect their proposal will have on the business. They don’t need to include suggestions about how their request can be made to work for you, the employer. I anticipate the majority of applications will still include this type of detail as it does help the employer consider the application.
What hasn’t changed though is that these requests are still just that – a right to ‘make’ a request, not a right to be granted it. Employers can still refuse requests if there are solid business reasons for doing so.
How have the types of flexible working requests changed?
It has been interesting to chart the changes in the types of ‘typical’ flexible working request over the years. The Employment Rights Act 1996 (which originally introduced the right to request) defines a statutory request as a request for a change to an employee’s terms and conditions relating to their hours, times or place of work. This has led to many of the following types of requests;
The Act (and the ACAS guide) doesn’t address temporary sabbaticals but it is arguable that such a request, whether a period of unpaid or paid leave, could also be a request for flexible working. This is because it is a temporary change to the contract.
The 2024 changes to the right to request flexible working are likely to continue to be for a permanent change. However, some employees will (due to personal circumstances), only be looking for a temporary change in their contract. We envisage fewer permanent requests being made for reasons such as care of elderly relatives, child care, menopause or specific health-based treatment. Employers should be alive to the fact that a temporary change could still come under the statutory regime. It should be treated in the same way as a permanent request. For obvious reasons, it could well be harder to justify a refusal of a request which is only temporary in nature.
By far the biggest increase in requests for flexible working in recent years has been in the form of hybrid/remote working, unsurprisingly. This has been an interesting one to observe. We’ve seen businesses starting to take quite different approaches to these.
Some businesses are clear that the ‘working from home’ experiment has not worked for them. They want people back in the office and have insisted on this. Others who were reluctant (or even rather ‘anti’) remote working pre-Covid have not insisted everyone come back to the office 5 days a week.
Many of our clients genuinely experience the benefits of offering hybrid working and have given up all or some of their commercial properties as a result, fully embracing home working models. We appreciate though that this does not work for everyone.
You now need to ‘consult’ to refuse a request – but how?
The requirement to consult with the employee is new but unhelpfully it is not specified HOW this consultation must take place. The ACAS Code obviously points the employer to arranging a meeting. In most cases this will be the sensible way to proceed. However, it is possible to consult in writing, for example where (as an employer) you have limited questions about your employee’s request.
Any meeting should allow for a reasonable discussion and consideration of the request. Employers should try to consider the potential benefits of the request and practical issues of managing any changes, rather than simply focussing on the negatives. A great deal has already been written about the potential benefits to both an organisation and its employees. These are summarised helpfully in the new ACAS Code as:
Do you have concerns about making a request work?
If you have concerns about how a request for flexible working might work, then there is always the option for a trial period. This is now specifically referenced in the ACAS Code.
We’re real fans of this approach and see it as a win-win for employers. A trial period gives both parties a chance to assess if it will work in practice and/or to adapt it. If it works that’s great, but if it doesn’t, the employer has proper evidence of why it hasn’t worked. We’d recommend trial periods should be up to 3 months to give any arrangement a real chance to work.
Will requests increase?
In short, yes employers can anticipate an increase in requests. Flexible working is here to stay. Employers will need to open their eyes to the benefits, rather than starting from the point of ‘how can I turn this down?’.
Employers also need to bear in mind that should Labour form the next government, they plan on extending flexible working still further so that it is a ‘default’ right. Employers would have to prove a very good reason to refuse it.
If you need advice getting to grips with the new legislation please get in touch: enquiries@menzieslaw.co.uk
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