Flexible working is still on the rise with the CIPD recently reporting 60% of employees say they have flexible working arrangements in their current role. But, are you doing enough in your organisation with flexible working now being a day 1 right, plus key to attracting and retaining staff?
Many employers have opted to continue to integrate working from home into their organisations, whether that’s termed “hybrid working”, “remote working”, “agile working” or something else entirely.
Inevitably, there will be situations where employees will not immediately get what they personally want from their working arrangements.
In these circumstances, there is an official way that employees can seek to effect change in their working practices: a statutory flexible working request.
On 6 April 2024, new legislation came into effect which has increased employees’ rights to make flexible working requests, along with an updated Acas Code of Practice on flexible working requests, which can be found here.
Employers are required to deal with flexible working requests “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 includes good practice recommendations for employers to follow. See our article here for further detail on the Code and recent changes to the flexible working regime.
What are the current eligibility requirements?
As of 6 April 2024 an employee can make a flexible working request from day 1 of their employment. Previously there was a requirement for 26 weeks of employment, although a significant proportion of employers were already allowing this from the start of employment for their staff.
In a recent report, the CIPD confirmed that flexible working is pivotal when individuals are looking for new roles. When considering a new role, 71% of employees say having a flexible working request is important to them and 69% say the ability to work remotely is important, which when considering a new job is only overtaken in importance by pay and benefits.
Two requests per year allowed
Employees are able to make two requests in each 12-month period from 6 April 2024. Previously, they were limited to one. It won’t however be possible to make the second application while the first is already proceeding. However, bear in mind that simply not engaging with employees because of this or another technicality may not necessarily be the most productive way forward and could lead to a breakdown in relations with the employee in question.
What types of request could be made?
An eligible employee can ask for their terms and conditions to be changed in any way they wish. The most common flexible arrangement is working from home on a regular or ad hoc basis.
The request could include a variety of practical solutions such as working from home, job sharing, part-time work, altered working hours, term time working and so on.
The intention of a flexible working request is to make a permanent change to an employee’s contract. You can agree a temporary change to cater for a short-term need but should ensure that the terms of such an agreement are recorded to reduce any confusion about what has actually been agreed.
Key reasons for employers to increase flexible working for staff include to: improve attraction and retention of employees, supporting employees’ work/life balance, helping to support the mental health and wellbeing of staff.
What form should a request take?
A valid request under the current regime must meet a set of criteria, which are that it:
- is in writing;
- is dated;
- states that it is a statutory request for flexible working;
- states whether the individual has previously made such an application to the employer and when;
- states the change applied for and when the individual wants the change to take effect.
Again, if a request does not meet all of these requirements, it is probably not worth refusing to deal with it on those grounds, but we would always advise insisting on a written request at least, to avoid the possibility for any confusion.
How to respond to a flexible working request
Employers must be reasonable, and make decisions based on objectively justifiable, business-related reasons. They should avoid knee-jerk, subjective, and emotional responses, regardless of the surrounding circumstances.
As soon as practicable after the request is submitted, the employer should arrange to meet with the employee to discuss the request. The key is to approach the request with an open mind, even if there is reluctance to accept the request. Otherwise, the employer may leave themselves open to arguments around an unfair process, which could in turn increase the risk of a constructive dismissal or discrimination claim.
Under the Acas Code of Practice on flexible working requests, it is also confirmed that if an employee asks for a reasonable adjustment for their disability by way of a request for flexible working, the employer must consider this in accordance with its legal obligations under the Equality Act 2010. Employers must make reasonable adjustments to remove disadvantages related to a person’s disability. Employers should bear in mind that the legal obligation to make reasonable adjustments is separate to the legal obligation to consider a request for flexible working.
On what grounds can a flexible working request be rejected?
Officially there are eight grounds on which an employer can reject a request. The employer only needs to establish one of these reasons:
- The burden of additional cost;
- A detrimental effect on the ability to meet customer demand;
- An inability to re-organise work among staff;
- An inability to recruit more staff;
- A detrimental impact on quality, i.e., there are no other employees who could step up to learn a particular skill;
- A detrimental impact on the performance of the employee or their team or the business as a whole;
- There will be insufficient work during the times the employee proposes to work, e.g., a high street shop open 9-5 will not be able to accept a request for the employee to work during the night; and
- Planned structural changes, i.e., that the flexible working arrangement would conflict with a planned business re-organisation.
The only claim a disgruntled employee can bring specifically under the flexible working regime is on the basis of procedural failings.
If successful, an employment tribunal can order an employer to reconsider the request and/or award up to eight weeks’ pay (subject to the statutory cap on a week’s pay). If a decision is made with due consideration and genuinely based one of the above reasons, there is therefore little an employee can do to challenge this.
However, do bear in mind that even if a request has technically been considered in line with the statutory procedure, an employer could still potentially face claims under the discrimination legislation or for constructive dismissal.
If rejecting the request, care should be taken over the wording of that rejection: ambiguity or poor phrasing could increase the risk of a claim. Whether rejecting or accepting a request, the employer must:
- Confirm the decision in writing;
- Do this without unreasonable delay; and
- Provide the decision within two months from the date on which it receives the employee’s request, including any appeal process (unless an extended period is mutually agreed).
Can there be a trial period?
A trial period in a flexible working arrangement is a good practice recommendation in the updated Acas Code of Practice on requests for flexible working.
If you are reluctant to accept the employee’s request in full, a trial period could be a sensible option to factor into your decision on a flexible working request. This will act as a reasonable compromise through which you and the employee can assess whether the arrangement can work in practice.
For example, if you are concerned that accepting the request may have a detrimental effect on your ability to meet customer demand, the trial period could go a long way to easing – or proving! – your concerns about this. Make sure you make the terms of the trial period completely clear when giving your decision and ensure there are definitive parameters in place.
Do we need to allow an appeal?
Employers do not need to allow an appeal, although we would recommend it is good practice to do so and this is in the accordance with the Acas Code guidance applicable to flexible working requests. If an appeal is allowed, it should be with a different individual who is more senior to the individual who considered the request originally.
What form does the final agreement need to take?
If an agreement is reached, the terms of the changes must be recorded in writing and signed as a formal variation to the employee’s terms and conditions of employment.
What steps should you be taking now?
We would recommend employers consider taking the following steps:
- Ensure your managers are aware of the recent changes in the new flexible working regime, which apply from 6 April 2024.
- Have a flexible working policy in place to ensure that the correct process is followed when requests are made. If you already have a policy in place, make sure that it has been reviewed recently so that it reflects the current legal position and any arrangements specific to your organisation.
- Specify in job adverts when a job can be done flexibly (where possible), which may help source a greater pool of candidates.
- Increase awareness of current flexible working arrangements within your organisation or that may be possible, which could help with retention of your current workforce.
- Provide training and support to managers ensuring they have the confidence to consider and manage flexible working requests in a positive and legally compliant manner. Along with being able to proficiently manage a potentially remote and disparate workforce.
- Consider the organisational risks of flexible working, in particular, hybrid or home working and how to best combat this. The CIPD has reported on “inclusion risks”, including employer concerns about a negative impact on culture, collaboration and communication with employees.
- Consult with your workforce on hybrid working arrangements, ensuring this fits in with your organisation’s culture and purpose. Revisit this from time to time to ensure it is working for all, including your business purposes.
If you require any advice on preparing your business for flexible working requests, on how to deal with specific requests made, or on any potential disputes, please get in touch.