Changes to Flexible Working Rights
The Employment Rights Act 1996 allows employees to make an application for flexible working. A flexible working request is a request by an employee to change their contractual hours of employment or place of work.
From 6 April 2024, all employees have had the statutory right to request flexible working from the first day of their employment. Employers must comply with the changes introduced by the Flexible Working (Amendment) Regulations 2023. Employees no longer need 26 weeks of continuous employment before applying for flexible working.
Key Changes
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Employees can now make two flexible working requests during any 12-month period, up from one.
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Employers must respond to requests within two months (previously three), although an extension can be agreed between the employer and employee.
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Employees do not have to provide a reason or explain how the request will affect the business or how any impact can be mitigated.
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Employers have a duty to consult and compromise with employees. The procedure must be more transparent.
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The right to flexible working can be exercised from day one of employment.
Pre-Employment Requests
If a job applicant is made an offer, they cannot exercise this right until they start employment. An employer who receives a flexible working request before this date has no obligation to consider it. Such an application does not start the two-month response period. Employers should inform applicants that their request will be assessed once employment begins.
Employers must also be mindful if they decide to withdraw a job offer due to a flexible working application. Doing so could breach discrimination law if the decision is related to any of the nine protected characteristics, including:
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Age
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Disability
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Gender reassignment
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Marriage and civil partnership
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Pregnancy and maternity
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Race
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Religion or belief
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Sex
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Sexual orientation
Refusing a Flexible Working Request
If an employer decides to refuse a request, they must provide a valid business reason. Under the Employment Rights Act 1996, allowable reasons include:
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The burden of added costs
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An inability to reorganize work among existing employees
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An inability to recruit additional employees
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A detrimental impact on quality
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A detrimental impact on performance
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A detrimental effect on the ability to meet customer demand
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Insufficient work for the periods proposed
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Planned structural changes to the business
Employer Action Required
Employers must act now. Employees are likely to be aware of the changes through the media and online sources. Flexible working should now be made available to all employees. Failure to comply with the legislative changes could result in Employment Tribunal claims, including direct or indirect sex discrimination or, in the case of disabled employees, a failure to make reasonable adjustments. Such claims can damage a company’s reputation.
Flexible working can also benefit employers by attracting new talent and helping retain existing staff. Many employees seek a positive work-life balance, and offering flexible arrangements is increasingly used to remain competitive in recruitment.
Employers should review all flexible working policies and internal procedures, train managers on recognizing and handling requests, and carefully assess how the business can operate under flexible working arrangements.
For further advice and assistance, please contact the Quest HR Advice Line on 01455 852028.
