Flexible working became a priority during the pandemic, the necessity to work from home to help prevent the spread of coronavirus was a preventative measure but it demonstrated the fact that we do have the ability to work remotely and flexibly.

Although we are seeing employers trying to persuade staff back to the office because of the social, knowledge sharing and team building benefits the government have implemented some significant changes to the flexible working practices.

What is a flexible working request?

A flexible working request is an enquiry from an employee to change the way in which they work, there are many types of flexible working requests, for example:

• to work from home or for a hybrid arrangement;
• to change hours or days of work;
• for flexi time;
• to work under compressed hours; or
• to work term time only.

We ordinarily see requests to reduce or change hours and days of work or to work remotely.

Who can make a flexible working request?

The original legislation was that anyone who had been employed for over 26 weeks could make a request, however, the Flexible Working (Amendment) Regulations 2023 which will come into effect on 6 April 2024 change this.  Employees will be able to make a request as a day one right.

In other words, you could employ a new member of staff to work Monday to Friday, 8.30 am – 5pm.  Despite accepting the job they could request to change their hours on their first day of employment.

This will of course create some issues for employers.  However, although there is a right to request a change there is no obligation on the employer to agree to the request (see below).

What should be included in a flexible working request?

The Employment Relations (Flexible Working) Act 2023  is expected to come into force no later than April 2024 and will simplify the application process.

A flexible working request will then need to include:

• A statement that the request is one that falls under the statutory right to make such a request;
• A declaration that the request is in relation to the Equality Act 2010 if it is;
• The flexible working pattern that the employee wants to adopt; and
• The start date for the new pattern

Up until that point the employee will need to state the impact of the request on the employer and how that could be managed.  This will be removed upon enforcement of the Employment Relations (Flexible Working) Act 2023.

How many flexible working requests can an employee make?

Employees are currently permitted to make one request in a 12 month period.  

Upon enforcement of the Employment Relations (Flexible Working) Act 2023 this will change and 2 requests can be made in a 12 month period.

An employee can make any number of informal requests, there is no limit on this. 

Can a flexible working request be refused or denied?

The short answer is yes, however employers can only refuse on limited grounds.  There is not currently an obligation to consult with your employee making the request, providing you can demonstrate the ground you wish to rely upon. 

An employer can refuse a flexible working request on the grounds of:

• The burden of additional costs;
• A detrimental effect on the ability to meet customer demand;
• An inability to recruit additional staff;
• An inability to reorganise work;
• A detrimental impact on quality;
• A detrimental impact on performance;
• Insufficiency of work;
• Planned structural changes.

There is no planned change to the ground upon which you can refuse a flexible working request.

However, when the Employment Relations (Flexible Working) Act 2023 is enforced the time in which to consider the request will reduced from 3 month to 2 months and employers must meet with the employee who has made the request.

When considering any request employers should ensure that they are reasonable and undertake the task fairly.  Each application should be judged objectively and should not be assessed on the need of the employee.  However, where a flexible working request is actually a request for reasonable adjustments employers must ensure that they act undertake the correct consideration.

Where a flexible working request is refused, employees do not have the right to appeal, however, it is considered good practice to allow an appeal. 

Can an employee request more predictability of hours?

The Workers (Predictable Terms and Conditions) Act 2023 is expected to come into force no later than April 2024 and will allow workers to request a more predictable working pattern.

The right extends beyond employees to workers and so agency workers and zero hours staff will be entitled to make such a request.

A worker can make the request where the existing working pattern lacks certainty in terms of the number of hours, the times that they work or if they are working under a fixed term contract which is less than 12 months.  The worker must have worked for 26 weeks and not made more than 2 requests in the last 12 months in order for the request to be valid.

The request must be in writing and include:

• The date of the request;
• A statement that it is a requesting line with the statutory right;
• The change they are seeking;
• The date that they want it to come into effect; and 
• If and when they made a previous request, and if and when they last made a flexible working request.

Although the grounds for refusal are the same as for a flexible working request, an application for predictable hours must be handled within one month (even if their contract comes to an end in that month) of it being made and will also include a duty to consult with the worker.

Unlike a flexible working request an appeal can be initiated by the worker and must be in writing.  

The changes to the flexible working regime and the implementation of the new right to request predictable hours are just part of the government’s overhaul of employment law and are indicative of the fast paced and ever changing nature of HR.  Employment Law Solutions offer HR support and can assist with navigating the ever changing face of employment law. By offering a monthly retainer service you are able to benefit from legal advice and employment contract reviews 24/7, 365 days, all while spreading the cost over equal monthly payments.