Changes to flexible working 2024

New flexible working laws take effect in April 2024. Specialist employment solicitor, Charlotte Holman, takes a look at the changes to flexible working.

In a bid to improve work-life balance and reflect modern working practices, the government has introduced new legislation in the form of the Employment Relations (Flexible Working) Act 2023 and the Flexible Working (Amendment) Regulations 2023 (SI 2023/1328) which came into force on 6th April 2024. The new legislation introduces important changes in relation to flexible working requests which are summarised as follows:

• Employees will be entitled to make a flexible working request from day 1 of their employment. Previously employees were required to have completed 26 weeks’ continuous service before being eligible to make a request.
• As part of a flexible working request, employees will no longer have to explain what effect, if any, the employee considers their requested change may have on the employer and how any such effect might be dealt with.
• On receipt of a flexible working request, an employer will have 2 months to consider the request, consult with the employee (if the employer is unable to accept the request) and notify the employee of the outcome. It is possible for the decision period to be extended by agreement with the employee. Under the previous rules, an employer had 3 months to deal with a flexible working request meaning the decision period has been reduced by a month unless an extension for the outcome of the request can be agreed between both employee and employer.
• An employee will now be able to make up to 2 requests for flexible working in any 12 month period. Prior to the changes, an employee was limited to making only one request in a 12 month period.
• An employer will not be permitted to refuse a request unless the employee has first been consulted. Such consultation will need to be complied with within the 2 month decision period.

As per the previous rules, employers will still be required to deal with a flexible working request in a reasonable manner. Although there is no statutory definition for what a ‘reasonable manner’ means, the ACAS Code of Practice, Guidance and previous published ACAS guidance provide recommendations as to how an employer may reasonably deal with an employee’s flexible working request. The new and updated ACAS Code of Practice, which came into effect from 6th April 2024, can be found at https://www.acas.org.uk/acas-code-of-practice-on-flexible-working-requests/2024

Further, employers will still be entitled to refuse a request for flexible working provided the reason for refusal forms one or more of the eight statutory business grounds. This is in line with the previous position. Legitimate business reasons as to why an employer may not be able to accommodate a flexible working request include:

• The burden of additional costs
• Detrimental effect on ability to meet customer demand
• Inability to reorganise 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
• Planned structural changes

Where a flexible working request is rejected by reason of one or more of the above-mentioned grounds, employees are entitled to challenge the employer’s decision. Whilst there is no obligation for an employer to include an explanation as to why a particular reason may apply when refusing a request, sometimes it can be beneficial to give an explanation in order to demonstrate consideration of the request and also show how a request would potentially effect or impact the employer’s business if it were to be accepted.

Employees who are unhappy with an employer’s decision to refuse a flexible working request may appeal the decision or bring claims in the Employment Tribunal (further to a period of ACAS Early Conciliation). Where a Tribunal finds that an employer has failed to deal with an employee’s flexible working request in accordance with legislation, it will make a declaration to that effect and may make an order for reconsideration of the request and/or make an award of compensation up to a maximum amount of eight weeks’ pay, subject to the statutory cap. An employee may also have other claims as a result of their flexible working request such as unlawful detriment, automatic unfair dismissal, constructive dismissal and discrimination claims.

Employers who are dealing with flexible working requests are best placed to have procedures and policies in place which explain to employees how they may make a request and once a request has been submitted, how this will be considered and dealt with by the employer. Any existing flexible working policies should be updated to take into account the new provisions which came into force on 6th April 2024.

Holmes & Hills have a team of expert employment lawyers who can assist both employers and employees in respect of the new changes to the flexible working laws and provide practical clear guidance in respect of flexible working requests and appeals.