From April 6, 2024, employees in England and Wales have the statutory right to request flexible working. This includes any deviation from the traditional Monday-to-Friday, 9-to-5 work schedule, a model which is increasingly perceived as outdated and rather rigid in the days since the COVID-19 pandemic.
This blog will outline the main changes to the rules around flexible working in England and Wales and how they will affect employers and employees.
An overview of the new flexible working regime
Here are some of the key changes that both employers and employees need to know about.
Immediate eligibility: Employees can now initiate flexible working requests from their first day of employment, a departure from the previous requirement of waiting 26 weeks.
Mandatory consultation: Employers are now obligated to engage in consultation with employees in the event of rejecting a request. This process wasn’t required before.
New appeal deadline: The entire flexible working process, including any appeals, must now be completed within two months, compared to the previous three-month timeline. Extensions are permissible only with mutual agreement.
Increased request allowance: Employees are now permitted to make two statutory requests within 12 months, in contrast to the previous allowance of one request within the same timeframe. However, informal requests remain an option beyond this limit.
Elimination of explanation requirement: Employees are no longer mandated to provide explanations regarding the impact of their request on the employer and its potential resolution, a departure from previous requirements.
What is the scope of the new statutory flexible working framework?
The new framework encompasses adjustments to working hours, schedules, or work location. It’s crucial to note that employers can only decline requests based on one of eight specified business-related grounds:
- Financial burden: You may reject a flexible working request if it imposes additional costs on your business, such as expenses for recruitment agencies or premium overtime payments for other staff covering the workload.
- Work reorganisation: If rearranging work among existing staff, especially those with specialised skills, proves impractical or unsuccessful, this constitutes a valid reason for refusing a flexible working request.
- Difficulty in recruitment: Requests that pose challenges in hiring additional staff, especially for minor time adjustments, can be rejected due to impracticality.
- Impact on quality: Refusal is justified if accommodating a request would compromise service quality, particularly in customer-facing roles or department heads working reduced hours.
- Performance impact: Requests significantly hindering an employee’s ability to perform their role can be rejected.
- Customer demand: Requests conflicting with peak business hours, such as in the hospitality sector, can be refused if they impede meeting customer demand.
- Insufficient work: If the proposed working schedule exceeds available tasks, such as in restaurant shifts, refusal is warranted.
- Structural changes: During periods of reorganisation or redundancy, refusing flexible working requests is reasonable to adapt to planned business changes.
There are three situations when employers cannot refuse flexible working requests:
- Personal preferences: Refusing based on management preferences for full-time or office-based work is not permissible.
- Cultural fit: A request cannot be denied solely because it doesn’t align with the company culture.
- Protected characteristics: Any refusal related to an employee’s protected characteristics, such as age, disability, or gender, is prohibited, as it could result in discrimination claims.
ACAS Guidelines
ACAS has issued an updated Code of Practice and non-mandatory guidance, emphasising consultation, compromise and reasonable consideration of requests. Employers should prioritise exploring possibilities for mutually beneficial flexible working arrangements, engaging in meaningful discussions and providing clear explanations for decisions.
Some additional considerations
Handling multiple requests
When faced with multiple requests, employers are advised to address each request impartially, considering possibilities rather than replicating previous decisions. Prioritisation based on personal circumstances should be avoided, ensuring fairness and compliance with statutory requirements.
Mitigating discrimination
Employers must navigate discrimination risks, particularly concerning gender, caregiving responsibilities and disabilities. Indirect discrimination against working mothers, caregivers, or disabled individuals could lead to costly legal repercussions if not appropriately addressed, and could also negatively impact workplace wellbeing. There are plenty of resources available online but if you are in any doubt it’s always best to get specialist legal advice.
Dealing with requests – some high-level guidelines
As mentioned, navigating new regimes can be complex, and there are plenty of contextualities to consider. Here are some high-level guidelines for dealing with flexible working requests.
Meet the basic requirements: Ensure prompt and thorough handling of requests, including meetings with employees, consultation and well-documented decision-making processes.
Explore possibilities: Approach requests from a perspective of what is feasible rather than focusing solely on limitations. Approach with a flexible mindset, and consider compromises and alternatives to accommodate employees’ needs.
Cost and inefficiency: Understand that accepting flexible working requests may incur additional costs and impact business operations and inefficiencies. Employers should balance business needs with creating family-friendly workplaces that prioritise workplace wellbeing.
Get your consultation process right: Engage in meaningful, honest discussions with employees, providing opportunities for clarification and addressing concerns to foster positive employee relations.
Provide documentation and transparency: Maintain clear records of meetings, decisions and explanations for request outcomes. Transparency in the decision-making process builds trust and can mitigate risks and support legal compliance.
How might these changes affect businesses’ flexible working policies?
In light of these changes and shifts in workplace culture more generally, businesses are likely to reassess their flexible working policies and a move towards accommodating flexible working policies and practices is probable. In our recruitment processes, we will place particular importance on supporting candidates or new employees, helping to address potential client reservations and identifying solutions that suit all parties.
The new statutory regime on flexible working is expected to prompt a surge in formal requests submitted by employees, particularly from organisations aiming to recalibrate their hybrid work policies to favour increased office presence. Now is the time for HR and management teams to acquaint themselves with the updated regulations and be well-equipped to manage requests efficiently.
