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Employment

Publish date

20 December 2022

Flexible Working Requests

Employers should be aware the government has confirmed its proposal for flexible working requests (FWR) to become a day one right. Previously employees would have to have worked for their employer for 26 weeks before gaining the statutory right to make a FWR.

Why has this change occurred?

The 2019 Conservative Party manifesto committed to “encourage flexible working and consult on making flexible working the default unless employers have good reasons not to”. After a consultation receiving over 1,600 responses from a wide range of stakeholders, 91% were in favour of removing the 26-week qualifying period. Many respondents expressed their opinion that a FWR should not be ‘earned’ rather, it should be the norm.

What are the specific proposals?

Employees will be able to make a FWR from day one of employment. For clarification, this is still a right to make a request, not a right to flexible working.

If an employer proposes to reject a request, it will be required to consult with the employee to explore the options available before rejecting the request.  This is not entirely new, as the Acas Code of Practice on handling flexible working requests states that employers should discuss the request with the employee if they are considering rejecting it.

There are changes to the alternatives that an employer should at least discuss with the employee if they are planning on rejected the request. This point needs to be clarified. It can be interpreted as guidance or as a statuary requirement.

At the moment employees can only make one formal FWR per 12 month period.  The consultation proposed allowing two requests in a 12 month period.  74% of respondents supported this change.  Despite some concern about taking up employers’ time, the government proposes to move ahead this with change as part of a drive to normalise flexible working.

The government proposes that employees will no longer be required to set out how the effect of their request might impact upon the employer.  It was considered that, if the right to request flexible working is to become a day one right, it would be difficult for new joiners to understand the inner workings of their new employer.

The eight reasons that employers can provide in their refusal will remain the same.  Many respondents considered that the current list remain valid. As a reminder, these are:
o    planned structural changes
o    the burden of additional costs
o    quality or standards will suffer
o    they won’t be able to recruit additional staff
o    performance will suffer
o    won’t be able to reorganise work among existing staff
o    will struggle to meet customer demand
o    lack of work during the periods the employee proposes to work.

When will these changes be implemented?

Making the right to request flexible working a day one right requires secondary legislation.  The government has committed to introduce such legislation “when parliamentary time allows”.

The other changes require primary legislation.  The government have said that it will support the existing Private Members’ Bill outlining these changes.

No dates have not been set, but we recommend employers start considering the changes and to adapt their processes to implement the changes.

We have noticed an increase in threatened and actual litigation stemming from FWRs.  Turning down a request does not automatically generate grounds for a claim.  But where the reason(s) for refusal could be indirectly discriminatory, for example on the grounds of sex, age or disability, this can give rise to discrimination claims.  Such claims have no qualifying period and potentially uncapped compensation.  Employers should consider any discriminatory impact of the reasons for refusing a request and whether these could be justified if challenged.  The proposed changes to the flexible working request regime will further increase awareness amongst employees of their rights.

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