How to Respond to a Flexible Working Request

Following implementation of the Flexible Working (Amendment) Regulations 2023 with effect from 6 April 2024, employees now have greater flexibility over when and where they work, through enhanced rights to request flexible working arrangements.

In this guide for employers, managers and HR personnel, we explain the rules on flexible working requests in light of the new rules.

 

What is flexible working?

 

Flexible working is a broad term and can relate to the hours people work or the pattern of those hours. It can also include flexibility over where someone works some or all of those hours. As such, a qualifying employee may apply to their employer for a variation in their terms and conditions of employment if the change relates to either the hours and times when they are required to work, as well as where they are required to work, including:

 

• having flexible start and finish times, where an employee is required to work within a certain core timeframe, but can choose when to start and finish work within agreed limits
• working compressed hours, where employees work their usual full-time hours but in fewer days, for example, compressing a 5-day week into a 4-day week
• working varied shift patterns, where an employee alters their normal shift pattern to work a different shift pattern, such as switching from morning to afternoon shifts, or vice versa
• working staggered hours, where an employee has different start and finish times to others
• working part-time hours, where an employee is contracted to work full-time hours but works reduced hours, usually by working fewer working days or less hours per day
• working solely from home, known as remote-working, or working partly from home and partly from the employee’s normal place of work, known as hybrid-working
• splitting a full-time post into two part-time roles, known as job-sharing, with each employee working at alternate times to share the total workload.

 

What is a flexible working request?

 

A flexible working request refers to a formal application made by an employee for changes to be made to their working hours, times and/or location. These requests are referred to under Part 8A of the Employment Rights Act 1996 as ‘making a statutory application’.

 

The law on making flexible working requests

 

Under the Flexible Working (Amendment) Regulations 2023, with effect from 6 April 2024, employees can make two flexible working requests in any 12-month period with no minimum service requirement. Employers must notify the employee of their decision within two months.

The legislation also introduced a consultation requirement, where employers will be required to consult with employees, as a means of exploring the available options, before refusing the employee’s flexible working request, and removed the requirement that employees explain what effect, if any, that the change applied for would have on the employer and how that effect might be dealt with.

 

 

How to respond to flexible working requests

 

While employers are obligated to consider flexible working requests in a “reasonable manner”, they are not required to accept them. Acceptable grounds for refusing a request include where:

 

• the flexible working request will result in additional costs to the business
• the request will result in an inability to meet customer demand
• the request will result in an inability to reorganise work amongst other staff
• the request will result in an inability to recruit additional staff to provide cover
• the request will have a detrimental impact on quality and/or performance
• there will be a lack of work for the employee to do during the proposed working times
• the employer is planning structural changes to the workforce.

 

The employer must consult with the employee before making any decision to refuse their request, where it will be unlawful for an employer to refuse the application unless they have discussed available options with the employee.

If the employer is happy to approve the request without discussion, they will not be required to consult with the employee. If a consultation is necessary, a meeting should be arranged as soon as possible so that a decision can be made within the statutory timeframe. Under the new law, the employer must reach their decision within two months of the request being made, unless a longer period is agreed between the employer and employee.

The overall net effect of the changes are to enable employers to deal with flexible working requests more quickly and efficiently, while thinking creatively about what is possible in terms of viable changes, in conjunction with the employee. Where the employer and employee have explored all available options, but the employer is unable to accommodate the flexibility requested, the employer will still be able to prioritise the needs of their business, but the employer must provide clear, written reasons for rejecting the request.

There is no express obligation for employers to offer an appeal following a refusal of a flexible working request. However, as part of dealing with a request in a reasonable manner, not least once the revised statutory Code of Practice comes into effect, employers are strongly advised to proactively offer appeals.

 

Do employers have to accept a flexible working request?

 

An employer is not legally bound to accept a flexible working request, but employers are encouraged under the ACAS guidance to take a positive approach to flexible working so that requests are not rejected by default without due consideration, together with an open dialogue about what may be workable all round.

By recognising the importance of flexibility for the employee, and listening carefully to what they have to say, this can often help the parties to find a mutually acceptable way forward, even if the request cannot be agreed in full. For example, where an employee has asked to work from home 3 days a week and from the office 2 days a week, it may be possible for the employer to agree to a 2/3 split hybrid-working arrangement instead.

By refusing a flexible working request, at least without proper consideration or within the prescribed timeframe, an employee may bring a tribunal complaint. This could result in an order for the employer to reconsider the application and for damages of up to 8 weeks’ pay.

Additionally, any refusal of a request for flexible working may result in allegations of, and damages for, unlawful discrimination. For example, parents and carers who have their flexible working requests refused may experience discrimination if the refusal amounts to less favourable treatment because of their sex. Equally, where an employee feels that they have been discriminated against by having a request unfairly refused, they may be able to forcibly resign and claim constructive dismissal, again with a claim for compensation.

Even in cases where a refusal of a flexible working request can be justified, and is no way discriminatory, the employer runs the risk of losing valuable members of staff who are unable to balance their working life and home life with any existing working pattern.

 

Implementing flexible working arrangements

 

Where the employer is able to approve the employee’s request for flexible working in principle, either with or without modifications to the original request, the changes to their terms and conditions must be updated in the contract of employment. The employer should also discuss with the employee how and when the changes might best be implemented, setting out in writing a statement of the agreed changes, together with a start date. This should be put in place as soon as possible, or at the latest 28 days of the request being accepted.

Additionally, when managing a flexible working arrangement, the employer must not only document the new working pattern, they must also take steps to monitor the arrangement. This is about clear communication between the employer and employee, making sure that the new arrangement is working in practice and if further changes need to be made.

 

Flexible working requests best practice

 

A flexible working request policy is the foundation of best practice across the organisation. By setting out the law and procedure in writing for making flexible working requests, managers are able to deal with requests in a compliant and consistent manner, while employees can understand their rights and how they can expect their request to be dealt with. Since each request will still need to be dealt with on a case-by-case basis, a workplace policy can help to instil confidence that any request will be handled fairly and consistently, being given the due consideration that it deserves.

The flexible working policy should also specify the eligibility criteria and the timeframe for decision-making.

When handling flexible working requests, employers should ensure a fair and consistent approach. Each request should be considered on its merits, taking into account the individual’s needs and the operational requirements of the business. Employers should aim to respond to requests promptly, within the statutory two-month period, and provide clear reasons if a request is declined.

Communication is key. Employers should maintain open lines of communication with employees throughout the process. This includes acknowledging receipt of the request, discussing it with the employee to understand their needs fully, and exploring possible compromises or alternative solutions if the initial request cannot be accommodated.

Training managers is also vital. Managers should be equipped with the skills and knowledge to assess flexible working requests objectively and manage flexible working arrangements effectively. This includes understanding legal requirements, recognising potential impacts on team dynamics, and ensuring that business objectives are met.

Once a flexible working arrangement is agreed, it should be documented in writing and incorporated into the employment contract, detailing the agreed terms and conditions. Regular reviews should be scheduled to assess the effectiveness of the arrangement and address any issues that arise. These reviews provide an opportunity to make adjustments if necessary and ensure that both the employee’s needs and the business’s needs continue to be met.

 

Need assistance?

 

If you have a query about responding flexible working requests, we can help. Our HR consultants and employment law advisers can support with guidance on how to deal with flexible working requests. We can also advise on what the new Bill means for your organisation an its existing flexible working policy and procedures. Contact us for specialist advice.

 

Flexible working request FAQs

 

Does an employer legally have to accept a flexible working request?

An employer is not obliged to accept a flexible working request, provided they deal with that request in a reasonable manner. There are several statutory grounds for refusing a request, from the burden of additional costs to planned structural changes.

Who is eligible for a flexible working request?

Employees the right to request flexible working from day one of a new job.

How do you justify a flexible working request?

Employees no longer have to provide justification for their flexible working request.

 

Last updated: 1 May 2024