How to handle flexible working requests

How to handle flexible working requests

Flexible working requests have been a useful tool for employees for many years, originally largely benefitting working mothers. More recently, however, with seismic changes to working practices during and following the pandemic, a new approach to flexibility in working life is being embraced by both employers and employees, often through the mechanism of flexible working requests.

This trend for increased flexible working arrangements culminated with the most significant shake up of the statutory rules on flexible working requests in many years coming into effect from 6^th April 2024.

In this blog, we wanted to take the opportunity to refresh our understanding of how employers should approach their obligation to deal with flexible working requests in a ‘reasonable manner’.

So who can make a statutory flexible working request?

An individual may only request flexible working under the statutory mechanism if:

• they are an employee;
• they are not an agency worker (unless they are returning to work from a period of parental leave – this being the only circumstance in which an agency worker is entitled to make a statutory flexible working request)
• they have not made more than one other statutory request for flexible working (i.e. not more than a total of two requests) to their employer during the previous twelve months – NOTE: this is one of the fundamental changes introduced on 6^th April 2024, as prior to this date an employee was restricted to one flexible working request per 12-month period; and
• the final outcome of any other statutory flexible working request they may have made to the employer is not still proceeding – this includes any appeals and agreed extensions.

In another significant change to the legislation, from 6 April 2024 the right to request flexible working is a day one right on commencement of employment. Prior to this date, employees must have had at least 26 weeks’ continuous service in order to qualify for the right to request flexible working.

If the above criteria are met, employees may request flexible working whatever their circumstances and whatever their purpose in making the request. The employee’s purpose in making the request is not relevant to the exercise of the statutory right, although it may be relevant when the employer comes to deciding whether or not to accept the request (see: Grounds for refusing a statutory request below).

What type of flexible working can an employee request?

An employee can make a request to change:

• how many hours they are required to work;
• the times they are required to work, and/or
• where, as between their home and their employer’s place of business, that work is done.

By way of illustration, ACAS have helpfully outlined the most popular requests which are made by employees under the flexible working request legislation, which are to:

• reduce hours to work part-time;
• change their start and finish times;
• have flexibility with start and finish times (sometimes known as ‘flexitime’);
• work hours over fewer days (‘compressed hours’);
• work from home or elsewhere (‘remote working’), or
• share the job with someone else.

Within the bounds of a flexible working request, employees might ask for the change to be for:

• all working days;
• specific days or shifts only;
• specific weeks only, e.g. during school term time (or during school holidays); or
• a limited time, e.g. for six months only.

Although the ACAS guidance I have mentioned does refer to requests to work form a remote location (i.e. not necessarily the employee’s home), strictly speaking such a request does not fall within the statutory regime. However, in practice, it may be better to consider such a request as though it is a statutory request, rather than reject it the r4equest on such a technicality.

Similarly, employers should be mindful of requests which are made by disabled employees but which may not fall within the statutory flexible networking regime, in order to ensure full consideration is given to the duty to make reasonable adjustments.

How does an employee make a statutory flexible working request?

An eligible employee must comply with the following, when making a flexible working request:

• make the request in writing;
• say that it is a request for flexible working;
• specify the change the employee would like to make;
• give a date when the employee would like the change to happen;
• state whether a previous request has been made by the employee to the employer and, if so, when, and
• make sure the request is dated.

The requirement for an employee to explain as part of their request what effects they think the change will have on the employer and how in their opinion any such effect may be dealt with was removed from 6 April 2024.

Many employers provide a template form for employees to use when making such a request, to simplify the process for employees and also to ensure that they are provided with all the relevant information at the earliest opportunity.

Certainly, it would not be advisable to reject a request due to a failure to meet any of these requirements and it is advisable to have a dialogue with the employee to elicit the further information required.

How should an employer respond to a statutory flexible working request?

Once a valid request has been submitted, the employer:

• must deal with it in a ‘reasonable manner’;
• consult the employee about their request before taking any decision to refuse. Prior to 6 April 2024, there was no obligation on an employer to consult with an employee before deciding to refuse a request for flexible working, although it was always good practice to do so;
• must notify the employee of its decision on the request within a period called the ‘decision period’; and
• may only refuse the request if it considers that one or more of certain defined grounds for refusal applies.

The employer should, of course, acknowledge a flexible working request in writing, once it has been received, and set in train arrangements for discussing it with the employee.

What is meant by dealing with statutory flexible working requests in a “reasonable manner”?

The requirement on an employer that receives a flexible working request to ‘deal with [it]… in a reasonable manner’ is clearly a broadly-worded one, with no specific detail included in the statutory wording.

Nonetheless, an alleged failure to deal with such a request in a reasonable manner can provide the foundation for a claim to the employment tribunal by the employee who made the request. How an employment tribunal would construe this requirement, and adjudicate on whether or not there has been compliance by the employer with it, is therefore of crucial importance.

Various Acas codes and guidance documents exist which illustrate factors which may indicate that an employer approaches flexible working requests in a reasonable manner. Amongst many others, these include the following:

• having in place a clear Flexible Working Policy which sets out the information the employee is required to provide in making their request and the process which will be followed by the employer in order to consider it;
• approaching requests with an open mind, starting by considering what might be possible and basing decisions on facts rather than personal views or simply repeating previous decisions
• considering alternatives, compromises where the original request cannot be accommodated.

Consulting with employees about their flexible working request

For requests made on or after 6 April 2024, an employer must consult an employee about their request for flexible working if it is minded to refuse the request, or not to accept it without modification. The statutory requirement is that an employer may not refuse a request unless the employee has been consulted.

The statutory provisions do not stipulate what form the consultation must take, but the Acas flexible working Code recommends that the employer should invite the employee to a consultation meeting to discuss the request without unreasonable delay. The Code suggests that:

• a consultation meeting can help to make sure that all relevant information is understood before a decision is made
• the content of the meeting and the way in which it is conducted should allow for a reasonable discussion and consideration of the request
• it will usually be helpful to discuss, e.g. the potential benefits or other impacts of accepting or rejecting the request, and any practical considerations involved in implementing the request
• if the original request cannot be accepted in full, the employer and employee should discuss whether any potential modifications to the original request, or any alternative flexible working options, may be available and suitable for both sides
• it may be helpful to discuss whether a trial period may be appropriate to assess the feasibility of the arrangement
• the person holding the meeting should have sufficient authority to make a decision
• a written record of the meeting should be kept which provides an accurate reflection of the discussion that has taken place

In addition to being a separate legal requirement, the duty to consult is also consistent with the employer’s obligation to deal with requests in a reasonable manner, and so the recommendations contained in the Code  are relevant for the purposes of establishing reasonable practice in any event, which is why most employers would have followed this approach in any event.

What is the timetable for notifying employees of the employer’s decision (the ‘decision period’)?

The employer must notify the employee of its decision on the employee’s request for flexible working within the ‘decision period’.

The decision period runs for two months from the date the request is made (reduced from three months under changes introduced from 6 April 2024). The employer and the employee can agree a longer period.

Any extension of the decision period beyond the standard two months must either be agreed by the employer and the employee within that period of two months, or retrospectively, within a further three-month period after the first period expires.

Provided there is compliance with the above conditions as to timing, this means that the decision period may be extended repeatedly and/or indefinitely provided the parties both agree.

There is no formal requirement for the agreement to extend the decision period to be in writing or for it to be express rather than implied. However, there must be an actual agreement on the matter, i.e. as to there being an extension at all and its length, and these cannot necessarily be inferred from other actions.

Where an extension to the decision period is sought by an employer, and agreed to by the employee, the employer would be safest to deal with this expressly and in writing (even though this is not strictly necessary) so that there is clear evidence of the agreement. The Acas flexible working Code  recommends this as good practice.

The legislation does not compel the employer to allow an internal appeal against its initial decision to reject a flexible working request. However, the Acas flexible working Code states that allowing an employee to appeal is good practice. Where the employer does allow one or more appeals from the original decision, it is the decision on appeal or, if more than one appeal is allowed, the decision on the final appeal, that must be notified to the employee within the decision period (using the same definition of ‘decision period’ as is set out immediately above).

What are the grounds for refusing a statutory flexible working request?

An employer may only refuse a request for flexible working if it considers that one or more of the following grounds for refusal applies:

• the burden of additional costs;
• detrimental effect on ability to meet customer demand;
• inability to re-organise 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; and/or
• planned structural changes, e.g. the employer intends to reorganise or change the business and thinks the request will not fit with these plans.

If the employer decides to reject the request, it would be well advised, in its notification of the decision to the employee, to:

• state which of the above grounds apply, and
• explain, in the case of each ground cited, why it considers it applies.

Given the breadth of legitimate grounds for refusal, it will often not be hard for the employer (if it so desires) to justify as legitimate any decision it takes to reject a request. However, the employer must also bear in mind the potential for discrimination and/or unfair dismissal claims, which will typically be of greater commercial significance.

Best practice and the spirit of dealing with flexible working requests in a reasonable manner suggests that employers should approach flexible working requests in good faith and with an open mind. Often, where a flexible working request cannot be accommodated, this will include proposing alternative flexible working arrangements which may still be supportive to the employee, even if they are not exactly what the employee has requested.

Should the change be permanent or temporary?

The legislation is not prescriptive about whether or not the change to the employee’s contract must be permanent when a flexible working request is granted. The employer and employee can therefore decide whether any change agreed will be permanent or temporary, to suit the specific circumstances.

If the employee specifically requests a temporary change for particular reasons, the employer will need to take those into account as part of its obligation to deal with the request in a reasonable manner..

The Acas Code and Guidance envisages that a trial period may be appropriate where the employer decides that the original request cannot be accept in full, ‘to assess the feasibility of an arrangement’. A trial period can therefore help test out a change and presumably make it easier for the request to be accepted thereafter, if the trial period is successful.

If a flexible working change is agreed, then it usually changes the terms of the employment contract, e.g. if the change impacts on the employee’s working hours, job location, job description or pay. Where contract terms change, the employer must give the employee a written statement containing particulars of the change(s) within one month of the change in question.

Once a change has been agreed, good practice would suggest holding further meetings to discuss how the arrangement will work and subsequently is working in practice.

If it has been agreed that the new arrangement will be subject to a trial period, then review meetings will be critical for determining whether or not the temporary changes will become permanent.

If, however, the changes agreed were permanent, with no trial period, then the nature of any review meeting will be to discuss things such as any concerns that either party may have, what (if any) support the employee may need etc, but the employer will not be able to reverse the change without the employee’s agreement, if it thinks the arrangement is not going well. In those circumstances, the employer may wish to use any review meeting to propose adjustments to tweak the arrangement, with the employee’s agreement.

Claims and remedies

There are limited circumstances in which an employee may bring a claim to the employment tribunal where the employer does not agree to the flexible working arrangement which they requested. They may only bring a claim:

• where the employer failed to deal with the request in a reasonable manner, or
• where the employer failed to consult the employee about their request before deciding to refuse it, or
• where the employer failed to notify the employee of the decision on the request within the applicable ‘decision period’, or
• where the employer rejected the employee’s request for reasons not permitted by the statute, or where the employer’s decision to reject the request was based on incorrect facts

Where the tribunal finds in favour of a claimant in one of the above claims, it has no power to order the employer to allow the employee to work according to the flexible arrangement they requested.

Rather, if the employee succeeds in such a claim, the tribunal will make a declaration to that effect, and may, in addition:

• make an order that the employer reconsider the request (in which case the flexible working provisions will apply once more, as if a new request to work flexibly had been made on the date of the order for reconsideration)
• award such compensation as the tribunal considers just and equitable, up to a maximum of eight weeks’ (capped) pay.

What are the cultural benefits of flexible working and in particular hybrid/home working?

As we have seen, employers will often have little difficulty in finding a reason to refuse a flexible working request if it wishes to do so and although that may sometimes seem to be best for the business in the immediate to short term, there can be many benefits in having a more accommodating outlook to flexible working requests.

The benefits of flexible working may include:

• increased productivity and effectiveness;
• less time (and money) spent commuting;
• reduced absenteeism and ‘presenteeism’;
• improved mental health and wellbeing, as well as physical fitness;
• an improved work/life balance, e.g. more time spent with family, or on other activities; and/or
• attracting and retaining key employees.

Please don’t hesitate to contact the team at mlpaw for detailed advice in connection with any of the issues raised above. You can reach us at employment@mlplaw.co.uk or @HRHeroUK or on 0161 926 9969.