December 6, 2022
By Rachel Ford-Evans
The UK Government has announced that it plans to give all employees the right to make two flexible working requests per year from the first day they start their employment with a new employer.
Our employment solicitors are now regularly being asked by employer clients to advise on what they can do to protect themselves going forward.
What kind of arrangement might be covered by a flexible working request?
An employee might want the right to request a change in their working hours, place or way of working – for example, hybrid working or remote working away from their main place of work either all of part of the time. This type of request for flexible working would be covered by the flexible working rules if the employee makes it formally in writing to their employer.
What flexible working rights do employees have at the moment?
At the moment, employees only have the right to request flexible working once they have worked for their employer for 6 months. They also only have the right to make one request for flexible working each year, so that their employer isn’t required to deal with multiple requests each year.
What extra rights will employees have under the proposed legislation?
The main changes to the flexible working rules under the Government’s plans are:
- Employees will have the right to request flexible working as soon as they start employment with a new employer if they’re not happy with their working arrangements. This means that employers will have to deal with requests even if they are made by an employee who hasn’t yet passed their probation.
- Employees will also have the right to make two requests for flexible working in any 12-month period, rather than one request currently – so the number of requests and employer has to consider is likely to increase significantly under these plans.
- Employers will have to complete the process of dealing with a request within two months of it being made, rather than the current three. This will out added pressure and urgency on employers’ shoulders.
When will these proposed changes come into force?
We can’t be 100% sure. The changes are likely to come into force via a private members’ employment bill. However, as the UK Government published its response supporting the bill, it’s now a matter of time before the new law replaces the current framework in place. Watch this space!
Can an employer reject a flexible working request?
Yes. Employers should be reassured that there will be no right in the new plans for employees’ requests to be automatically accepted – the only duty on employers will be to properly consider any formal requests for flexible working under a reasonable flexible working procedure. Employers will still be able to reject a flexible working request if they have one of eight business reasons for doing so. These reasons are:
- The costs of allowing the request would be too high;
- It wouldn’t be possible to reorganise work performed by the employee among other staff;
- The employer can’t recruit other staff to cover additional work;
- The quality of goods or services supplied by the employer would be affected;
- Allowing the request would affect the employer’s ability to meet customer demand;
- Business or employee performance would be affected;
- There wouldn’t be enough work for the employee to do during the hours they have asked to work; or
- There are planned changes to the business which wouldn’t work if the request was allowed.
What should employers do if their employees’ request flexible working?
The process for responding to a request should involve:
- Holding a meeting with the employee to discuss the request;
- Looking at other options if it may not be possible to allow the request completely; and
- Giving the right of appeal if the request is rejected.
Is there anything else employers need to do when employees’ request flexible working?
Our employment solicitors also recommend that all employers should:
- Have a written flexible working policy which will guide managers and employees through the process they should follow when a request to work flexibly is made. This policy should be included in your staff handbook or provided to employees separately.
- Be clear with job applicants during the recruitment process what their hours and working arrangements will be. This will help minimise the number of requests made by new starters during the first 6 months of employment. Setting out the terms in a clear offer letter and contract of employment will help manage employees’ expectations.
- Be careful of discriminating against employees with protected characteristics. For example, female employees are more likely to need to make a request to work flexibly because of childcare reasons. If this is the case, the employer should give extra care when considering whether or not it should grant the request and if in doubt, seek legal advice.
The misconceptions around the right to flexible working…
Often employees wrongly think that the flexible working regulations give them an automatic right to insist on their own personal flexible working arrangement. However, that’s far from the truth. In fact, the only thing that employment law actually gives employees is the statutory right to request flexible working. As such, whilst enhancing this right to request flexible working will strengthen the employment law rights of employees (and possibly encourage more of them to make a request to change their working patterns), there will still be plenty of legitimate business reasons allowing an employer to reject an employee’s statutory request.
Will employers now face more requests for flexible working?
Probably. This law change by the government suggests encouraging employees to work flexibly is here to stay. What this law change will also do is see more employees make a request at such an early stage of their employment.
Has the pandemic played a part in all of this?
There’s no doubt that the flexible working arrangements which were forced upon the population because of the covid-19 lockdowns have strengthened the case that employees can work flexibly and change their working pattern without impacting their employers. During the pandemic, employees’ personal circumstances were taken into account in a way never seen before and hybrid working became commonplace. Whilst this inevitably led many employees to request temporary arrangements, this has later manifested itself in encouraging others to be making flexible working requests.
What are the risks of getting things wrong?
No employer wants to face Employment Tribunal claims. However, if an employee doesn’t think their employer has dealt with their request in a reasonable manner, they can challenge their employer by bringing an Employment Tribunal claim (under section 80H of the Employment Rights Act 1996).
When a Tribunal considers this type of claim, it cannot question the business reasons given by the employer for refusing an employee’s request. It cannot either substitute its own views for the views of the employer when it comes to whether the request should have been granted. Instead, the Tribunal is limited to considering:
- Whether the employer’s procedure was reasonable;
- Whether the employer took request seriously;
- Whether the employer’s decision was based on correct facts; and
- Whether the reason for the refusal falls within one of the eight business reasons outlined above.
Any other risks to employers?
Potentially yes. Employees will sometimes try and argue that the way that their requests were dealt with amounted to unlawful discrimination under the Equality Act. Our employment solicitors have dealt with many discrimination claims arising out of these types of arguments. Indeed, it’s quite common for female employees who are challenging the refusal of their requests to also bring claims for sex discrimination.
Our top employer tips for handling requests
- Have a written flexible working policy in place which meets the minimum legal standards for handling a request;
- Always follow that written policy. This will ensure that you deal with requests promptly, in a reasonable manner, and within the 3-month decision period;
- Ensure you have a paper trail showing that you seriously considered the request;
- Start with a positive, can-do approach to a request – e.g. looking to overcome any obstacles and difficulties that the request presents, rather than approaching the request in a dismissive way from the start. This will yield better outcomes and better manage employees’ expectations.
- Avoid rejecting a request based on a technicality – e.g. refusing a request because it hasn’t been raised formally in writing. In such circumstances, it’s much safer to the inform the employee of the mistake and give them a chance to correct it;
- Consider alternatives to the request rather than just rejecting it outright;
- If you are rejecting the request, explain the decision properly to the employee. Whilst an employee will never like you rejecting a request, at least ensure that they understand why you are rejecting it;
- Ensure consistency – e.g. if you’ve accepted one request for say working part time hours from one employee, be careful not to apply a different decision for another employee unless you have a very good reason for the different treatment; and
- Keep a record and a paper trail of all discussions.
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