How to Handle Flexible Working Requests: A Legal Guide for Employers

As work environments become more fluid and adaptable, flexible working arrangements have become increasingly popular, offering employees a better work-life balance and enhancing productivity. As an employer, it’s crucial to understand your legal obligations regarding flexible working requests and handle them effectively to maintain a positive and compliant workplace.

What is Flexible Working?

Flexible working encompasses a range of arrangements that provide employees with more control over their work schedules and locations. It deviates from the traditional 9-to-5, office-based workday, offering employees the flexibility to choose when, where, and how they work. This can include options such as:

• Flexible start and finish times: Employees can choose their start and end times within a set range, allowing them to better manage personal commitments and optimise productivity.
• Compressed hours: Employees work their full-time hours over a shorter number of days, providing them with more extended blocks of free time.
• Homeworking: Employees work from their homes, either all the time or a portion of the week, eliminating commuting time and offering a more comfortable work environment.
• Job sharing: Two or more employees share a single full-time job, splitting the responsibilities and hours.
• Remote work: Employees work from a location other than their employer’s office, potentially anywhere with an internet connection.

Laws about Flexible Working Hours

In the UK, employees who have been with their current employer for at least 26 weeks have the right to request flexible working arrangements under the Employment Rights Act 1999. This right extends to all employees, regardless of their employment status, whether full-time, part-time, or fixed-term.

Recently, the UK government has also announced plans to introduce new legislation, the Flexible Working Bill, which will further strengthen employees’ rights to seek flexible working arrangements. The bill is expected to come into force in 2024 and will allow employees to request flexible working from day 1 of starting employment,rather than waiting until they have worked for their employer for at least 6 months.

New Flexible Working Bill

The Employment Relations (Flexible Working) Bill received its Royal Assent on 20 July 2023. In 2024, when the new law is likely to come into force, employees will be able to make two flexible working requests in each 12-month period, rather than one, and employers will have to notify the employee of their decision within two months, rather than three.

The new legislation introduces two significant changes to the existing framework:

1. Mandatory Consultation Requirement: Employers will be obliged to engage in meaningful consultation with employees before denying a flexible working request. This consultation aims to explore all viable options and potential solutions to address any concerns raised by the employer.
2. Elimination of Impact Explanation Requirement: Previously, employees were required to explain the potential impact of their flexible working request on the employer’s operations and how they proposed to mitigate any negative effects. This requirement has been removed, allowing employees to focus solely on their individual needs and preferences.

Employer Responsibilities towards Flexible Working Hours Requests

When an employee makes a flexible working request, employers have a legal duty to consider it seriously and respond within a three-month timeframe. This involves:

1. Acknowledging the request: Promptly acknowledge receipt of the request in writing.
2. Arranging a consultation meeting: Schedule a meeting with the employee to discuss the request in detail, understand their reasons, and explore potential solutions.
3. Making a decision: Carefully consider the request, taking into account the employee’s needs, the impact on the business, and any potential alternatives.
4. Communicating the decision: Inform the employee of the decision in writing, explaining the reasons behind it. If the request is denied, provide clear and objective reasons.

Practical Tips for Employers

To effectively manage flexible working requests, employers can adopt the following practices:

• Establish a clear flexible working policy: Develop a comprehensive policy that outlines the process for making requests, timelines, and eligibility criteria.
• Promote open communication: Encourage open and transparent communication between managers and employees regarding flexible working arrangements.
• Train managers: Provide managers with training on handling flexible working requests, ensuring consistency and fairness in decision-making.
• Consider trials: Offer trial periods to employees requesting flexible working arrangements to assess the feasibility and effectiveness of the proposed arrangements.
• Seek legal advice: If you have any concerns or questions about flexible working, seek expert guidance from an employment law solicitor.

How can employers respond to flexible working requests

Employers can still say no to requests, despite there being an increase in the number of applications being made.

The statutory grounds for refusing a request include where:

• the flexible working request will result in additional costs to the business
• the request will result in an inability to meet customer demand
• the request will result in an inability to reorganise work amongst other staff
• the request will result in an inability to recruit additional staff to provide cover
• the request will have a detrimental impact on quality and/or performance
• there will be a lack of work for the employee to do during the proposed working times
• the employer is planning structural changes to the workforce.

Employers must remember that even though they are not legally obliged to accept a flexible working request, they must still deal with any request in a ‘reasonable manner’.

If the employer is happy to approve the request without discussion, they will not be required to consult with the employee. If a consultation is necessary, a meeting should be arranged as soon as possible so that a decision can be made within the statutory timeframe. Under the new law, the employer must reach their decision within two months of the request being made, unless a longer period is agreed between the employer and employee.

Employers do not have to offer an appeal following a refusal of a flexible working request. However, as part of dealing with a request in a reasonable manner, employers are advised to offer appeals as “good HR practice.”

 Do employers have to accept a flexible working request?

An employer is not legally bound to accept a flexible working request. However, the revisions in the draft statutory Acas Code of Practice will encourage employers to take a positive approach to flexible working so that requests are not rejected by default without due consideration, together with an open dialogue about what may be workable all round.

By refusing a flexible working request, at least without proper consideration or within the prescribed timeframe, an employee may bring a tribunal complaint, which may result in an order for the employer to reconsider the application and for damages of up to 8 weeks’ pay.

Seeking Professional Assistance

Employers can effectively manage flexible work requests by understanding the legal framework, implementing clear policies, and promoting open communication. To Embrace the evolving nature of work and reap the benefits of a more engaged, productive, and diverse workforce, seek expert guidance from our experienced employment law solicitors.

Get in touch with us today at contact@davenportsolicitors.com or  +44 020 7903 6888 to schedule a consultation and discuss how to tailor flexible working arrangements to your organisation’s unique needs and goals.