New rules for flexible working requests from 6 April

The right to request flexible working has been around for over 20 years, and in that time eligibility to the right has been extended from parents and carers of young children to all employees after 26 weeks in a job. Access to this right is about to widen again with changes coming into force this year. Accompanying the legislative changes is a new draft Acas statutory Code of Practice, subject to parliamentary approval.

‘The right to request flexible working is just that; a right to ask, which employers can refuse based on a statutory business reason,’ explains Kalpesh Nakeshree, Head of the employment law team with Ware & Kay. ‘Having said that, employers do need to follow the statutory process, which is about to be tweaked in the employee’s favour. Perhaps more significant than the penalties for failure to follow the process are the risks of a discrimination claim and damage to recruitment and retention.’

Kalpesh Nakeshree highlights different types of flexible working, the process and the upcoming changes, the legal risks and ways to minimise them.

What is flexible working?

Post pandemic, flexible working is far more common and takes many forms with flexibility arising in:

• when employees work, such as flexitime (giving time off in lieu of working extra hours) and part time, annualised hours, compressed hours, and term-time-only hours;
• where employees work, such as homeworking, hybrid, or hub-based; and
• how roles are performed, such as by job-sharing.

The process

From 6 April 2024, the right to request will become a ‘day-one’ right, meaning employees no longer have to wait until they have six months’ service with an employer before being eligible to make a request.

The new Employment Relations (Flexible Working) Act 2023 will introduce other changes that are also expected to take effect from 6 April 2024. Key aspects of the process and the changes are:

• The employee’s request must be in writing and dated, as well as specifying the change requested, when they would like this to start, and when they made any earlier request.
• The employer has a general obligation to deal with the request reasonably.
• Following the request, the employer will have two months to deal with the request (reduced from three). The employer and employee can agree to extend this period.
• The employee will no longer have to explain in their written application how the request will affect the business and how these effects can be mitigated. Instead, the draft Code suggests that employers carefully consider the effect on the employer and the impact on the employee if the request is granted or refused.
• Unless the request is fully accepted, employers should promptly invite the employee to a meeting. The new changes will require the employer to consult the employee about the request and its potential effects. The draft Code suggests discussing alternatives if the request cannot be agreed.
• Acas advises to allow the employee to be accompanied at the meeting and to give a right of appeal against a refusal.
• If the request is turned down, employees will be able to make two requests in a 12-month period, having previously been limited to one every 12 months. Employees will not be able to make another request if one is still in process unless two months (or longer if agreed) have passed since the ongoing process was initiated.
• The employer must inform the employee of the outcome. Acas advises this is done in writing. Any refusal can only be on the basis of specific grounds. These include grounds relating to costs, customer demand and impact on performance.
• The employee may withdraw their application. The request will be treated as withdrawn if the employee fails to attend the meeting or any appeal meeting without good reason.

Resolving a dispute

Employees can bring a claim in an employment tribunal for failure to follow the process. A tribunal may award up to eight weeks’ pay as compensation (currently capped at £643 per week) and order that the process is rerun.

With the agreement of both parties, a dispute can be referred to the Acas Arbitration Scheme.

Discrimination and other risks

Given the wide grounds for refusing a request and the limited penalties faced by employers for failing to follow the process, the right to request has sometimes been seen as ‘all bark and no bite’. However, employees are also protected from dismissal or being subject to a detriment because they have made a request.

If a refusal can be shown to be a discriminatory act, there is the risk of uncapped compensation. If the request relates to an employee’s disability, a refusal could be a failure to make a reasonable adjustment under the Equality Act 2010. For example, an employee with anxiety which is exacerbated by being in a crowded place may ask to change their working hours to allow them to commute at quieter times. An unjustified refusal of a request made by a female employee to facilitate childcare arrangements, could amount to indirect discrimination because women are regarded by tribunals as usually being the primary carer.

The consultation meeting is a good opportunity to sensitively and confidentially discuss these issues to ensure that they are properly understood and taken into account. Employers may need to be careful about any unconscious bias at play. Decision makers should ask themselves if their decision is tainted by any preconceptions, for example that a young employee is likely to be less productive working from home than an older employee. Employers should also check that they are being consistent in their decisions.

How we can help

Not every employer will agree with Acas’s enthusiasm for flexible working, but not following the process and missing any potential discrimination can lead to risks of tribunal claims and employee disengagement. We can provide you with a suitable policy to ensure your processes are up to date and help you minimise the risks.

If you are an employer looking to review, add or update your internal policies, please contact  Kalpesh Nakeshree in the employment team on York 01904 716000, Wetherby 01937 583210 or Malton 01653 692247 or email kalpesh.nakeshree@warekay.co.uk