In response to the Covid-19 pandemic, many employers introduced flexible working practices such as homeworking and hybrid working. You may be among the many employees who have wished to continue to work flexibly, particularly if you are a working parent. A statutory scheme for flexible working already existed, but last year the government launched a flexible working consultation “Making flexible working the default”, recognising that there is no ‘one size fits all’ approach for flexible working. This week the government published its response to the legislation. Read on for more information on the existing regime and the proposed legislative changes.
The Current Right To Request Flexible Working
If you have at least 26 weeks’ continuous employment you can make a request for flexible working under the statutory scheme for any reason. This might be a request to change the hours you work, the times when you are required to work or to your place of work.
Your request and your employer’s response need to comply with the statutory requirements set out in sections 80F to 80I of the Employment Rights Act 1996 (as amended) together with the Flexible Working Regulations 2014.
- You need to make a written request;
- Your employer then has a three-month decision period (which can be extended by agreement) within which to consider the request, discuss it with you (if appropriate) and notify you of the outcome;
- Your employer should deal with your application in a reasonable manner;
- Your employer can only refuse your request for one (or more) of the following eight reasons:
- 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; or
- planned structural changes.
- Your employer may treat your request as having been withdrawn if, without good reason, you fail to attend a meeting to discuss your request and a further meeting rearranged for that purpose. Similar provisions apply in respect of a meeting to consider an appeal against the rejection of your request.
You may be able to make a complaint to the employment tribunal if your employer:
- Fails to deal with your application in a reasonable manner;
- Fails to notify you of the decision on your application within the decision period;
- Fails to rely on one of the statutory grounds when refusing your application;
- Bases its decision on incorrect facts; or
- Treats your application as withdrawn when the grounds entitling your employer to do so do not apply.
You can make only one request in any 12-month period.
What Are The Proposed Changes To The Right To Request Flexible Working?
On 5 December 2022, the government published its response to the flexible working consultation which it had launched on 23 September 2021. The government confirmed it would make the following legislative changes, although no specific timeframe has been given:
- Make the right to flexible working a ‘day one’ right, so no minimum service (currently 26 weeks) is required before you can make a flexible working request;
- Require an employer to consult with you if it is considering rejecting your flexible working request (although no positive obligation will be imposed on the employer to consider alternative arrangements if it does refuse a request);
- Permit employees to make two flexible working requests in a 12-month period instead of one;
- Reduce the period in which an employer must respond to a request from three months to two months;
- Remove the requirement for employees to specify in a flexible working request how the employer might deal with the effects of that request.
The government has indicated it would not be amending the eight statutory business grounds on which an employer is entitled to refuse a request.
Lincs Law Employment Solicitors Can Help You
If you are an employee or employer seeking specific advice on flexible working requests please contact us for a free enquiry on 01522 440512 or via the web chat or contact form on our website at www.lincslaw.co.uk.
Specialist Employment Solicitor
Lincs Law Employment Solicitors