Flexible working request reforms: A guide to updating your policy
Author: Stephen Simpson
Forthcoming changes to the law on the right to request flexible working mean that employers will have to amend their flexible working requests policy. We set out nine steps for HR professionals to follow when faced with updating their organisation's policy.
This step-by-step guide assumes that your organisation's flexible working requests policy follows the existing statutory minimum procedure and does not go beyond the law as it currently stands.
This guide reflects the changes in the Employment Relations (Flexible Working) Act 2023, which has received Royal Assent, as well as what is expected to be contained in:
- forthcoming secondary legislation; and
- the proposed updated version of the Acas code of practice on handling flexible working requests.
The details of both the secondary legislation and updated version of the Acas code have not been finalised - keep track of their progress via our legal timetable.
1. Offer flexible working from day one
The single most important proposed change is making the right to request flexible working a "day one" employment right. In other words, employees will no longer need 26 weeks' service to be eligible to make a statutory flexible working request.
Contrary to some reports, this amendment is not included in the Employment Relations (Flexible Working) Act 2023. However, this change is expected to go ahead via secondary legislation and you should take account of this when updating your organisation's flexible working requests policy.
2. Allow two flexible working requests every 12 months
At the moment, your policy will state that employees can make only one statutory request in every 12-month period. This should be amended to state that employees can make two statutory requests in every 12-month period.
There is one important additional knock-on change that needs to be reflected in the updated version of your policy. The amending legislation allows employers to restrict employees to having one "live" request at a time.
In other words, the updated policy should spell out that, although the employee can submit two requests every 12 months, before submitting their second request they must wait until after:
- their first request has been considered; and
- any appeal in relation to their first request has been dealt with.
3. Emphasise a positive approach to flexible working
In general, the legal changes are designed to encourage a more positive approach to flexible working from employers.
You should review the tone of your organisation's flexible working requests policy to ensure that it is positive.
The policy wording should place the emphasis on fostering an environment in which requests are not rejected by default without open-minded consideration and meaningful dialogue.
4. Remove the requirement on the employee to explain the impact on the employer
The legal changes are designed to:
- encourage employers to seek to engage with employees to jointly understand the impact of their flexible working proposal; and
- reduce the onus on the employee to have to second-guess the business impact of the flexible working request if it is accepted.
A key change in this regard is the removal of the requirement for an employee to explain to their employer what effect, if any, their request would have on the employer and how, in the employee's opinion, that might be dealt with.
You should check the part of the policy that sets out what the employee must include in a statutory flexible working request and remove references to this requirement.
5. Reduce the timescale to deal with flexible working requests
To speed up employer responses and enable time-limited flexible working requests to be processed quicker, the timescale for employers to deal with requests is being reduced from three months to two months.
When changing your flexible working requests policy to reflect this, you should bear in mind that the timescale for dealing with requests includes the time taken to conclude any appeal stage that is contained within the policy.
6. Express a willingness to consult on flexible working options
An overarching aim of the reforms is to encourage a more consultative approach to flexible working requests.
In particular, the legal changes place a specific obligation on an employer to consult with an employee before rejecting a request.
You should review your flexible working requests policy to ensure that the wording encourages a constructive discussion between the employer and employee.
It is particularly important that the policy expresses the employer's willingness to discuss any alternative flexible working options that may be available if the original request cannot be accommodated.
7. Allow trade union officials to act as companions at flexible working meetings
A small but important change to the proposed updated version of the Acas code of practice on handling flexible working requests is the broader definition of a companion at flexible working meetings (including at any appeal meeting).
While it is a recommendation rather than a legal requirement, the existing Acas code states that employers should allow employees to be accompanied by a work colleague.
The proposed updated version of the Acas code widens the definition of a companion to include a trade union representative or an official employed by a trade union.
The idea is to mirror the categories of companion allowed in disciplinary and grievance meetings.
8. Make the decision-making process more transparent
In the proposed updated version of its code, Acas is keen to accentuate the need for transparency in employers' decision-making about flexible working requests.
In particular, Acas wants to encourage employers to communicate more than just the broad business reason(s) when they are rejecting a request (prescribed in the existing legislation - see below).
The proposed updates to the Acas code encourage employers to provide the employee with any additional information that is reasonable to help to explain the decision to reject the request.
9. Offer an appeal against flexible working request rejections
Finally, in the proposed updated version of its code, Acas places a greater weight on the importance of employers being proactive in offering an appeal if a request is rejected.
This should give the employee the opportunity to present any new information or raise any concerns related to the way in which their request has been handled.
Therefore, you should review your flexible working requests policy's approach to appeals. If the policy does not already offer the opportunity to appeal, you should consider introducing this.
If there is already an appeal stage, you should ensure that the policy clearly spells out employees' right of appeal if their request is rejected in whole or in part.
Flexible working requests - permissible reasons for rejection
Under the Employment Rights Act 1996, an employer's refusal to accept an eligible employee's application for flexible working must be based on one or more specific grounds. These grounds, which are staying the same despite the other legislative changes, are:
- the burden of additional costs;
- a detrimental effect on the ability to meet customer demand;
- an inability to reorganise work among existing staff or recruit new staff;
- a detrimental impact on quality or performance;
- insufficiency of work during the periods the employee proposes to work; and
- planned structural changes.