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UK changes to flexible working rights

| Duncan & Toplis | 19 December 2022

The rules around flexible working are set to change following a government consultation which could lead to employees being given the right to request flexible working from the first day at a new job.

Previously, employees have not been entitled to make a request for flexible working until they meet the 26-week eligibility criteria.

What is flexible working?

Flexible working means any type of working pattern that is different from an existing one. It is designed to suit an employee’s needs by, for example, incorporating flexible start and end times, working from home, or condensed hours.

Working flexibly can also include job sharing, where two or more people do one job and split the hours, working part-time, staggered hours, or time off in lieu. Flexible working can mean just one of these elements, or a combination to suit the individual.

What are the changes?

There are a number of changes that are set to come into place after the government’s published consultation.

Along with the right for employees to request flexible working from the first day of a new job, employees will be able to make two flexible working requests per year, up from one previously.

Additionally, the time in which employers must respond to requests will be reduced from three months to two. There will also be a duty to discuss alternatives to the request.

What do the changes mean for employers?

The important thing to note is that the right is a ‘right to request’, it is not an automatic right to work flexibly and the employer has the right to decline any request for a number of business reasons.

Since the pandemic, many employers have already embraced a flexible working approach, and it is important to remember that this can also benefit a company in many ways.

Benefits of accommodating a request

The aim of the new proposed changes will potentially mean a greater work-life balance for millions of UK employees.

Employers have largely benefited from flexible working over the past years. For example, many companies will have been able to retain smaller premises despite business growth and a higher number of employees.

Offering flexible working means employees benefit from reduced commuting and working around childcare obligations. Employers who offer these arrangements can attract and retain the best talent and stay competitive in the recruitment market.

Considerations when dealing with a flexible working request

It will be important to consider any flexible working request on a case-by-case basis, this will depend on a number of factors specific to the company and the role of the individual putting forward the request. In order to fairly consider a request, you should:

  • Ask for the request in writing
  • Discuss it with the employee
  • Remind the employee that if the request is granted, this would mean a permanent change to terms and conditions
  • Consider other options if the request cannot be accommodated
  • Make a decision based on fact
  • Only turn down a request if there is a valid business reason
  • Give your employee a decision as soon as possible, but no later than two months after the request has been received (allowing time for appeal.

Ideally, employers will have a flexible working policy in place, but in the absence of such a policy, it will be important to follow the ACAS Code of Practice on flexible working requests as a minimum.

Declining a request for flexible working

Employers should consider requests in a reasonable manner and can only refuse them if there is a good business reason for doing so. The legislation permits an employer to refuse a flexible working request on eight business grounds.

These reasons include an inability to reorganise work amongst existing staff or recruit additional staff, a detrimental impact on quality, performance or ability to meet customer requirements and the burden of additional costs.

Impact and implications of declining a request

Employees whose requests are refused may decide to terminate their employment, particularly as flexible working positions may be readily available with other employers.

Employers should also be mindful of any discrimination implications if declining a request, for example, women who request flexible working to care for their children may be able to complain of indirect discrimination based on sex if their application is rejected.

Requests that are declined without a valid business reason may result in the employee bringing a claim against the company if their flexible working request is not handled in line with the ACAS Code of Practice.

If you would like any help or guidance on flexible working policies, get in touch with our friendly team today to discover how we can help your business.


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