New flexible working request rules - what does HR need to know?
Author: Laura Merrylees
Changes to statutory flexible working rights are due to come into force on 6 April 2024. Given the increased expectation of staff to be able to work flexibly, coupled with the right to request flexible working becoming a day-one right, employers should prepare for an increase in flexible working applications. In this article, we guide HR through the key changes and how employers can prepare.
What is changing?
1. Right to request flexible working becomes a day-one right
All employees will have the statutory right to make a flexible working application from day one of employment, removing the current 26-week service requirement.
2. Number of flexible working applications increases to two per year
Employees will be able to make two applications in any 12-month period for a flexible work pattern, an increase from the current one application. However, employees will be allowed only one "live" request with the same employer, meaning that any first request must have been concluded before a second request is submitted. A request will be concluded if:
- a decision has been made (including any appeal);
- the application is withdrawn;
- an agreed outcome is reached; or
- the two-month decision period ends.
3. Decision period decreases to two months
Employers will need to inform the employee of their decision within two months of the application, a decrease from the current period of three months (unless an extension is agreed).
4. Removal of need to explain effect of proposed change
Employees will no longer be required to explain what effect, if any, the change that they are requesting would have on their employer and how that effect might be dealt with by the employer.
5. A new requirement to consult
Employers will be required to consult with the employee if they intend to reject their request for flexible working.
When will the changes take effect?
The changes are expected to apply to all employees in England, Wales and Scotland from 6 April 2024. Most of the changes originate in the Employment Relations (Flexible Working) Act 2023, which received Royal Assent on 20 July 2023, but they still need to be brought into force via regulations. The Flexible Working (Amendment) Regulations 2023 bring into force the day-one right to request flexible working for all employees on 6 April 2024. The remaining regulations are awaited but it is anticipated that all changes will take effect from 6 April 2024.
What flexible working changes can an employee request?
- A change to their working hours (eg part-time work).
- A change to the times they are required to work (eg condensed hours).
- A change to their place of work (eg to work from home).
On what statutory grounds may employers reject a flexible working request?
- The burden of additional costs.
- A detrimental effect on their ability to meet customer demand.
- An inability to reorganise work among existing staff or recruit additional staff.
- A detrimental impact on quality or performance.
- Insufficiency of work during the periods the employee proposes to work.
- Planned structural changes.
What changes are being made to the Acas code of practice on requests for flexible working?
To bring it in line with the new rules, Acas is updating its code of practice on requests for flexible working, which sets out best practice for employers when handling flexible working requests. Although a failure to follow the code will not, of itself, make an employer liable to an employment tribunal claim, tribunals can take the code into account when considering a case.
Key points to note from the updated draft code (also expected to come into effect from 6 April 2024):
- Where an employer accepts an employee's flexible working request in its entirety, or a modified or alternative arrangement is agreed following consultation, the employer and employee may agree not to hold a formal meeting to discuss the request.
- If a request cannot be accepted in full, an employer should consult the employee about any modifications, or alternative options, that may still benefit the employee, including whether a trial period would help to assess the feasibility of the request.
- While there is no statutory right for an employee to be accompanied at a flexible working request meeting, the code recommends that an employer should allow an employee to be accompanied by a colleague or a trade union representative.
- Although there is no statutory right for an employee to appeal a flexible working decision, the code makes it clear that allowing an appeal is good practice, and that wherever possible (irrespective of the organisation's size), the appeal should be handled by a different manager.
What can HR do to prepare?
It is more important than ever to get the approach to flexible working right, given the sea change in attitudes (with the proliferation of the hybrid working model) and the competitive advantage for employers in the labour market. Reflecting the tone of the Acas code, HR should support a culture where the focus on responding to a flexible working request is to consider what may be possible and what could work.
In advance of the legislation taking effect, you should:
- review and update your organisation's policies and processes on flexible working;
- roll out communications to your line managers around the changes and train your managers on handling requests under the new regime; and
- ensure your organisation is resourced to deal with a potential increase in the number of flexible working applications.
