New flexible working rules: a flowchart

From (we expect) 6 April 2024, the statutory right to request flexible working will be amended and there will be a new Acas code of practice.

What’s changing with the right to request flexible working?

We’ve written about the new laws and guidance previously. The changes are expected to all take place on 6 April 2024. To sum up:

• Employees will be able to make a statutory request for flexible working from the first day of employment, instead of needing 26 weeks’ employment (the idea being to make flexible working the norm and not something to be earned);
• There will be enhanced consultation requirements, with employers being required by law to consult an employee before refusing a statutory request for flexible working;
• Employees will be able to make two requests each year (instead of one) and employers must respond within two months (reduced from three months), with any appeal also needing to be dealt with within this timescale; and
• The new Acas Code of Practice emphasises the need for meaningful engagement and jointly exploring alternatives if the employee’s preferred arrangement won’t work. This places a greater emphasis on the need for employers to propose compromises.

We’ve made a flowchart summarising an advisable process for handling statutory flexible working requests when the law changes.

What’s not changing?

Many aspects of the regime will remain the same. This is what is not changing:

• Employees still have to say that they are making a statutory flexible working request for it to count as one;
• Employers must deal with applications “in a reasonable manner” (judged partly on compliance with the Acas Code of Practice);
• Flexible working requests can only be refused for one or more of eight permitted business reasons listed in the legislation;
• Employees can complain to an employment tribunal if their employer decides to reject an application on incorrect facts or does not handle the decision in a reasonable manner or otherwise falls short of the statutory requirements; and
• Employees can only be awarded a maximum of eight weeks’ pay for breach of the statutory flexible working regime. So penalties remain very low, with higher compensation only available if the employee successfully brings another claim (such as discrimination).

What difference will the changes make?

Although the move to a “day 1” right has grabbed the headlines, in fact many employers already offer flexible working from the first day of employment. The more significant changes are likely to be the shortened timeframe for a decision and the new emphasis on compromise.

To keep within the new two-month decision-making timeframe, employers will need to have good processes and a clear understanding over who is responsible for what, including when managers should be seeking input from HR or in-house legal teams. Managers may need guidelines and possibly training.

The decision over whether to agree or reject a request ultimately remains with the employer, but the new emphasis on compromise means that employers are at greater risk of a claim if they don’t propose alternatives. Many employers already have formal or informal policy positions on what works and what doesn’t work. Such policies can sometimes form the basis of a compromise offer. But, in cases where the employee is effectively challenging the policy and asking for an exception to be made in their case, individual discussions will still be needed.

The risk of discrimination claims (for example for indirect sex discrimination or failure to make reasonable adjustments) remains the much greater legal risk when turning down a flexible working request. Employers should therefore explore why an employee is making a request for flexible working and be careful to avoid discrimination.