More of us than ever before work in a way that is different to the usual 9-5 in the office and there seems no sign of that changing. In line with this shift, the Government embraced the momentum for change, and from 6 April 2024 new legislation allowing for increased rights on flexible working requests came into effect.
After years of campaigning by many people who make the case for more flexible approaches at work, this news has been widely celebrated. But how much is actually changing, and when? And how can you as an employer embrace that change as something with positives and benefits for you and your employees?
Flexible working regime – what’s changing?
There are some key differences in how the new regime will now work as follows:
- The right to make a flexible working request, now applies from day one of employment. Previously, an employee needed to have 26 weeks’ continuous employment to be able to use the statutory regime.
- Employees will be able to make two requests in each 12-month period. Previously, they were limited to one. It won’t however be possible to make the second application while the first is already proceeding.
- Employers will have a window of two months to respond to the request, decreasing from the previous three months. Although, the two parties can still agree a longer period if they wish.
- Employers will be required to consult with employees about their request – an employer will not be permitted to refuse a request unless the employee has been consulted. It is therefore advisable to follow the recently published Acas Code of Practice on requests for flexible working by inviting the employee to a consultation meeting to discuss the request. The updated Acas Code of Practice, found here, sets out guidance on what a consultation process should look like and good practice on how to generally handle a flexible working request.
- If an employer rejects a request, it is advisable to follow the Acas Code by discussing with the employee whether it may be possible to secure some of the benefits of the original request sought, potential modifications to their request, or any alternative flexible working options that may be available. In addition to this it may be helpful to consider if a trial period may be appropriate to assess the feasibility of the arrangement.
- Employees will no longer be required, as part of their request, to set out how their flexible working request might impact their employer. The intention is that this should be part of the collaborative discussion between employer and employee.
Flexible working regime – what remains the same?
- The right remains a right to request flexible working only; it is not a right to work flexibly.
- The grounds on which an employer can rely to reject a request remain the same (these are set out in our article here).
- Employees will still be required to comply with the other formalities around making a request, for example, making the request in writing and stating expressly that it is made under the flexible working legislation.
- There is no change to the position on appeals. Employers are not still not legally required to allow for this, but are recommended (by the new Acas Code of Practice) to offer an appeal process.
Acas Code
Employers are required to deal with flexible working requests in “in a reasonable manner”, which will include taking into account if they have complied with the Acas Code of Practice on requests for flexible working, which can be found here.
Acas has said that the “Code’s good practice recommendations aim to drive forward positive cultural shifts across organisations.” A new Foreword sets out, ”the starting position should be to consider what may be possible”.
The new good practice recommendations from the Code include:
- Allowing employees to be accompanied by a fellow worker, a trade union representative or official at meetings to discuss requests.
- Once the request is agreed, offering the employee an opportunity for a discussion to clarify any further information to help implement the arrangement.
- Providing additional information which is reasonable to help explain a decision to reject a flexible working request.
- Appointing a different manager to handle any appeal, wherever possible.
What are the implications for you as an employer?
Probably none of us can imagine a world where we go back to the more rigid ways of working many of us had before the pandemic. The perception of flexible working has changed forever but there remains a balance to be struck for organisations between the undoubted benefits flexibility can bring for employees and the potential impact for employers of having a more disparate workforce. We know that the degree to which flexible working can be accommodated will depend on individual roles and wider organisation or customer needs. There may well be concern in some quarters that in what already feels like an employee’s market, this will put yet further weight in employees’ favour.
However, we believe that this is a positive and welcome step and work with many employers who already operate flexible working policies reflective of the new law. We always encourage employers to consider carefully how they design and advertise vacancies and the ability to request flexible working from day one will have a key impact on that. Employers who are willing to be open and receptive to different ways of working are putting themselves in a better place in the marketplace, which may well ultimately lead to more effective and productive recruitment and possibly also greater staff retention.
It might be that no-one in your organisation has ever worked in a particular way before but perhaps that’s just because nobody has asked. There might be positive outcomes from it which even the person now requesting the change might not have thought of. Being open to accommodating alternative working patterns and having an engaged discussion about them with your employees will drive positive attitudes towards you as an employer and, in turn, reduce the number of staff issues being managed.
When it comes to existing employees, though employers can still pick from a fairly broad list to reject a request, the new flexible working regime highlights the importance of quality collaborative discussions about how flexible working can be adopted. This does require managers to have the confidence and training both to consider requests and to manage them in practice, something which is often overlooked. Managing a remote and disparate workforce is very different from face-to-face daily line management but can reap huge benefits for both employers and employees. Concerns about productivity or efficiency dropping with a remote workforce have repeatedly been shown to be unfounded, provided those teams are well managed, engagement levels for individuals who are able to adapt when or where they work often increase too.
The ability for employees to make more than one request in a 12-month period stems, in part, from an acknowledgment that circumstances can change dramatically in that period. There is a risk that this will increase the HR and administrative burden on employers, particularly when combined with the shorter timeframe for dealing with requests. However, as flexible working becomes more the ‘norm’, it could also be argued that in practice, employers may well become more able and therefore quicker at handling these potential changes to employees’ working patterns. Indeed, if individuals are recruited on more flexible working arrangements, the need for formal specific requests may not even arise.
Where the right balance can be achieved, evidence shows that employers are likely to see greater levels of productivity, attendance and engagement. It might take some trial and error to get to the right mix but it’s something all organisations are going to need to work with or else start standing out as a reminder of how we used to work.
We frequently work with our employer clients when they receive flexible working requests so if you require any support or advice with this, please get in touch with our Employment Law team.