Flexible working isn't a new concept. However, from 4 April 2024 the law has changed in an attempt to simplify the process for both employees and employers.
What was the position before 4 April 2024?
- Only employees with continuous service of 26 weeks or more could make a request under the statutory scheme.
- Employees had to specifically set out the impact of the proposed change on the employer, and how this change could be managed.
- The employer had to acknowledge the request within a three month period and if the request was rejected, the employer had to provide one or more statutory reasons why it was refused.
- Only one request every 12 month was permitted.
- An employer was entitled to reject the request quoting one or more of the eight statutory reasons:
- the burden of additional costs;
- detrimental effect on ability to meet customer demand;
- inability to reorganise work among existing staff;
- inability to recruit additional staff;
- detrimental impact on quality;
- detrimental impact on performance;
- insufficiency of work during the periods the employee proposes to work; or
- planned structural changes.
What is the position now?
- Employees can submit a flexible working request from the first day of their employment
- The request needs to be in writing, dated and state that it is a request made under the statutory procedure.
- The request must specify the change that the employee is seeking and when they wish the change to take effect.
- There is no longer a requirement for the employee to set out the impact of the proposed change on the employer and how any change could be managed.
- The employee should state whether they have previously made an application to the employer and, if so, when.
- Up to two requests can be made in any 12 month period and the eight statutory reasons for refusing a request remain.
ACAS Code of Practice on requests for Flexible Working
The non statutory ACAS Code of Practice states that:
"Business leaders and line managers play an important role in creating a positive culture around flexible working in their organisations. Managers should be trained to handle requests fairly and reasonably, including complying with their additional legal duties under the Equality Act 2010."
Although there is no statutory time limit for considering the request, the new rules state that requests should be dealt with a 'reasonable manner' by the employer. The legislation does not specify what is 'reasonable' but the ACAS Code suggests the following:
- Employers should organise a consultation meeting with the employee if the request cannot be accommodated without any undue delay.
- The employer should allow the employee to be accompanied at a consultation meeting.
- The consultation meeting should allow a reasonable discussion to include the use of a trial period in appropriate circumstances.
- The decision reached after a consultation meeting should be confirmed in writing without unreasonable delay.
- The refusal of a request should clearly explain the business reason(s) together with any additional information which is reasonable to help explain the decision.
- The employer should allow the employee to appeal against the refusal of a request and to be accompanied at an appeal meeting.
- The decision reached after an appeal meeting should be confirmed in writing without unreasonable delay.
In summary, the new rules enable employees to make a request to work flexibly from day one and the process for making the request has been simplified. However, the considerations for the employer remain largely unchanged.
The penalties involved for not complying with the legislation are a financial penalty of up to eight weeks pay and/or an order for reconsideration of the request.
However, it is important to note that an employee is protected against any "detriment" or dismissal because they made or proposed to make an application for flexible working under the legislation, or if the employee has issued legal proceedings relating to their flexible working request or has indicated they have grounds to do so.
Any dismissal under these grounds would be automatically unfair and would not require the individual to have the usual two years' continuous service.
In addition, any refusal to grant a flexible working request could potentially leave the employer exposed to challenges regarding discrimination (specifically sex, disability, religion or belief and age) under the Equality Act 2010.
If you have Flexible Working policies, you will need to update them now to take account of the above changes.
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.