Are employees entitled to flexible working?

One of the significant changes that we have seen in recent years is the broad acceptance that office working Monday-to-Friday is largely a thing of the past. Things have moved on significantly in terms of technology providing greater flexibility and employees demanding it. This development has gathered pace since the pandemic, with job applicants and employees in most sectors now having an expectation that flexible working will be available and demanding it as such.

Are employees entitled to flexible working?

Not necessarily. While businesses may be under increasing commercial pressure to give new recruits and existing staff what they want, flexible working is still not a right. An individual looking to join may be able to negotiate flexibility during the recruitment process. An employee who wants to build flexibility into their working day – condensed hours to allow them to do the school run, job-sharing, or remote working, for example (there are lots of possibilities) – can talk to their employer about this. Employers should take care to handle these types of discussions and decisions about flexible working carefully, not least because of the risk of discrimination claims.

But there is also a statutory process for making a flexible working request. This has been in the spotlight recently because of proposed changes that are currently working their way through parliament. The statutory process is a formal one. It is limited in application (there are rules about who can use it and how often they can use it) and it places additional responsibilities on employers that are being asked to consider changing aspects of an employee’s working pattern. It is here to stay, albeit in a modified form.

The current statutory process 

A statutory request for flexible working can only be made by an employee who has at least 26 weeks’ continuous employment and they must not have made a previous request in the last 12 months.

The request could be about any type of permanent or temporary change relating to: (a) the employee’s hours, (b) the times when the employee is required to work, or (c) the location where they work, although generally a flexible working request tends to relate to a request for a permanent change. The request must be in the right format, which includes being in writing and specifying that it is a statutory flexible working request. As well as setting out the proposed change, the request needs to explain any effect the change could have on the employer and how that could be combatted.

When an employer receives a statutory request, this triggers the start of a three-month window in which to deal reasonably with the request and give a decision. While it is preferable to focus on how the change could be accommodated, employers should always bear in mind the small number of grounds on which a request can be legitimately refused. These include: the burden of additional cost that would be caused by the change, and detrimental impact on quality or performance.

What are the proposed changes around flexible working?

These are set out in The Employment Relations (Flexible Working) Bill 2022-23. They are as follows:

  • Removing the ‘26 weeks’ continuous service’ requirement, so that the right to make a flexible working request applies to an employee from the start of their employment.
  • Increasing the number of requests that can be made in a 12-month period from one to two.
  • Requiring an employer to consult with the employee if it is thinking about rejecting their flexible working request before a decision is communicated.
  • Reducing the time an employer has available to respond to the request from three months as it is now to two months.
  • Doing away with the requirement that an employee’s request must set out how the employer might deal with its effects.

If these reforms are introduced, they will certainly widen the scope for formal flexible working requests to be made and we are likely to see them increase. The changes should go some way towards helping employers and employees have constructive conversations around different ways of working. But, crucially, the employee will still have the ‘right’ which will remains a ‘right to request’. The employer will still need to agree to an employee’s proposed new working arrangement, and the grounds for refusing a request will remain in place and unchanged.

The timeframe for implementation of the legislative change is unclear, so for the time being, employees and employers should continue to make and handle flexible working requests in line with the current legislation and their internal policies.

How Moore Barlow can help

If you would like the team at Moore Barlow to advise you on your flexible working policy or help you to create a new one, please do not hesitate to our Business employment team.

You’ll benefit not only from our excellent knowledge of the law, but also our practical understanding of the day-to-day pressures you face running your business. We will take the time to fully understand what you do and the issues you are dealing with, and advise you on the best way to handle them.