Following the recent changes to the statutory right to request flexible working which came into force on 6 April 2024, Acas has published new guidance which provides practical examples for both employer and employees on flexible working requests.
As there seems to be a move away from remote working habits that became so prevalent during the pandemic, with many employers mandating employees return to office working for most of their working week, it is important for employers and employees to make sure they understand the updated rules in relation to the new regime.
A summary of the changes to flexible working
All employees now have a right to request flexible working from the first day of their employment.
To make a request, this must be in writing, be dated, state that it is a statutory request, specify the change applied for and the proposed date for the change to become effective, and state whether the employee has made a previous request and, if so, when.
The entire process must be concluded within two months (including any appeal process) unless an extension is agreed.
Employees can make two statutory requests in any 12-month period (although employees and employers are free to agree informal arrangements outside the new statutory procedure).
Employees are no longer required to explain the effect of their request on the employer and how that might be dealt with.
Employers must consult with the employee if rejecting a request.
An employer can only refuse a request for one (or more) of the eight statutory "business reasons" which are: (i) the burden of additional costs; (ii) detrimental effect on ability to meet customer demand; (iii) inability to reorganise work among existing staff; (iv) inability to recruit additional staff; (v) detrimental impact on quality; (vi) detrimental impact of performance; (vii) insufficiency of work during the periods the employee proposes to work; and (viii) planned structural changes.
The updated Acas guidance
Acas has now updated its Code of Practice ("the Code") and has also issued some guidance for dealing with a formal flexible working request ("the Guide"). Whilst the Code and the Guide do not have statutory force, Employment Tribunals will be able to take the updated Code into account when considering relevant cases. It is important, therefore, for employers to understand the Code and for employees to understand their legal rights.
Whilst the new changes require employers to deal with requests in a "reasonable manner", there is no statutory definition of what this means. However, the Code recommends that the starting point for employers should be to consider each request reasonably on its own merits as it will depend on the circumstances of each individual and their role as to whether a request can be granted in full or part or otherwise.
There is also some guidance on the requirement to consult. There is an obligation for employers to consult unless they decide to agree the request in full. The Code sets out some guidance on this requirement. This includes inviting the employee to a consultation to discuss the request; ensuring this discussion and consideration of the request is reasonable; exploring the potential benefits and considering any potential modifications or practical alternatives if the request cannot be agreed in full; and considering whether a trial period may be appropriate to assess the feasibility of an arrangement.
The Code also contains new 'good practice' recommendations, which include: allowing employees to be accompanied at meetings to discuss requests; offering the employee an opportunity for a discussion to clarify or provide any further information to help implement the arrangement if the request is agreed; keeping any agreed request under review and agreeing dates to see if it is working; providing additional reasonable information in order to help explain a decision to reject; and appointing a different manager to handle any appeal, if possible.
The Code indicates that when an employer refuses a request, the written decision should be "clearly communicated", explaining the business reason and setting out any additional reasonable information which is reasonable to help explain the decision. Some suggestions of what this could include are: the steps the employer took to investigate the request; the practical aspects of relevant employee's job; alternative options considered by the employer; data used by the employer to make the decision (staffing levels and costs, for example); and any health and safety concerns.
The Code sets out some scenarios which may crop up and recommendations for how to deal with these, including where an employer receives more than one request from different people in the same department at similar times for example
How should an employer deal with requests in practice?
Some key considerations to take into account include:
Consider the request in a prompt and reasonable manner to ensure the employee receives a decision within two months.
Meeting with the employee to understand the request, approaching these meetings positively, with an open mind, including working with the employee to explore reasonable alternatives and mutually agreeable compromises.
Consulting with the employee if you plan on rejecting a request (and allowing the employee to appeal against the outcome).
If you are rejecting the request, you should provide the employee with a clear and genuine explanation of why and the efforts that have been made to explore and find an alternative.
You should consider whether a rejection can be justified and explore any discrimination risks. This includes considering the features of the request, including if any childcare responsibilities, caring commitments, or reasonable adjustments to accommodate a disability feature (and if the latter, ensuring to follow your separate duties under the Equality Act 2010).
You should document the decision-making process by keeping clear and comprehensive records of the meetings, and share notes with the employee should it be challenged in the future.
It is important for employers to keep in mind that they will need to accept a certain level of cost or inefficiency may result from a proposed arrangement. This will vary on a case-by-case basis depending on the nature of the business, its resources and the role of the employee making the request. A Tribunal is unlikely to consider it good enough for employers to reject requests solely on the basis that there will be a costs impact or some adjustments to the business operations required.
Whilst this new legal framework has yet to be tested in the Tribunal, there are a handful of cases under the previous regime which provide indications as to how Tribunals may handle such requests:
The Wilson v Financial Conduct Authority: 2302739/2023 case considered a flexible working request made by a senior manager at the FCA. The Tribunal ruled in the employer's favour as it found that the FCA genuinely considered the merits of the employee's request and provided specific reasons why it may have had a detrimental impact, rather than just applying its policy in a blanket way.
In Johnson v Bronzeshield Lifting Ltd: 2303313/2022 the employee bought a claim in respect of a flexible working request as well as for direct sex and disability discrimination arguing a failure on the part of the employer to take into consideration that she was going through the menopause as the reason why she had made the request. Here the Tribunal considered that whilst the refusal of the request itself was not disability discrimination, the fact that the employer failed to take the employee's menopause seriously amounted to the same and the employee's constructive unfair dismissal claim was successful on the same basis.
Comment
With many employers shifting away from hybrid working practices and now reverting to pre-pandemic practices of office working, these changes will likely lead to an increase in requests for flexible working. Given this, it is important for employers to make sure that they are familiar with the new rules, have suitable and clear policies in place that reflect the new changes so that they are ready to handle requests.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.