The Right to Request Flexible Working – A Day 1 Right

On 6 April 2024, employees in the UK were given the legal right to request flexible working arrangements with their employers from day one of their employment. Although a welcome change for employees, it’s important to note that, currently, there is no right to flexible working, but only a right to request flexible working.

Let’s take a closer look at exactly what flexible working is, the right to request flexible working and the practical considerations for employers.

What is Flexible Working?

Flexible working refers to an arrangement that allows employees to vary their working arrangements. This can include the following:

• Remote working – employees working from home or hybrid working;
• Flexible hours – employees adjusting their hours;
• Compressed working week – employees working longer hours on fewer days;
• Reduced Hours – employees working fewer hours than usual; and
• Working abroad – an employee may request to work abroad for a period of time or permanently.

The Right to Request Flexible Working

As of 6 April 2024, employees have a legal right to request flexible working arrangements from day one of their employment. Previously, an employee could only exercise this right if they had at least 26 weeks continuous service with their employer.

The following further reforms were introduced by the Employment Relations (Flexible Working) Act:

• An employee has the right to make two flexible working requests in any 12-month period (previously, this was only one);
• An employer must not reject a request without
• The decision must be communicated to the employee within 2 months of them making the request (this is reduced from 3 months previously).

Rejecting a Request

The Employment Rights Act 1996 states that an employer should deal with the request in a reasonable manner and should only refuse the application when one of the following grounds applies:

1. the burden of additional costs;
2. detrimental effect on ability to meet customer demand;
3. inability to re-organise work among existing staff;
4. inability to recruit additional staff;
5. detrimental impact on quality;
6. detrimental impact on performance;
7. insufficiency of work during the periods the employee proposes to work;
8. planned structural changes, and
9. such other grounds as the Secretary of State may specify by regulations.

Automatic Unfair Dismissal

If your employer dismisses you as a result of your flexible working request, this is classed as an automatically unfair dismissal and no continuous service is required to be able to pursue this claim. If this happens to you, be aware of the time limits; currently, the time limit to lodge an unfair dismissal claim in the Employment Tribunal is 3 months less a day from the effective date of termination (i.e. the date of the dismissal).

Discrimination/Reasonable Adjustments Request

If your request for flexible working is as a result of a protected characteristic and it has been refused, you may have a discrimination claim.

Currently, there are 9 protected characteristics listed under the Equality Act 2010:

• Age;
• Disability;
• Gender reassignment;
• Marriage or civil partnership;
• Pregnancy and maternity;
• Race;
• Religion or belief;
• Sex; and
• Sexual orientation

For example, if you have made a request for flexible hours due to childcare obligations, a refusal may constitute sex discrimination.

Alternatively, you may have made your flexible working request as a result of your disability, for example:

• You have made a request for flexible hours so you can attend medical appointments concerning your disability; or
• You have made a request for home working as you can manage your condition more effectively from home.

This may constitute a request for reasonable adjustments. Therefore, if your employer refuses such request, you may have a discrimination claim.

Again, it’s important to note the time limits for making a discrimination claim; currently, the time limit to lodge a discrimination claim in the Employment Tribunal is 3 months less a day from the last act of discrimination.

What Practical Steps Should Employers Take?

• Flexible Working Policy – although not a legal requirement, it is good practice for an employer to have a flexible working policy in place. This should outline the eligibility criteria, process for submitting a request, timeframe for responding and criteria used to evaluate requests.
• Follow the Acas Practice Code – although it is not a legal requirement to follow the Acas Code, an Employment Tribunal will take this into account when considering an employee’s claim.
• Training – ensure your employees and managers understand the legal framework and managers are trained on handling requests.
• Monitor the impact of flexible working – once flexible working arrangements have been approved and put in place, ensure you assess the impact of them, and how arrangements can be improved for employees and the business as a whole.
• Adopt an open mind – be aware of the benefits that flexible working can have for your business and try to adopt an open mind when dealing with requests, where practicable. Some benefits might include retaining staff, increasing productivity and improving diversity and inclusion.

How Can Ellis Jones Help?

With the demand for flexible working arrangements increasing, it is extremely important that employers are clued up on the right to request and implications in refusing a request.

If you require assistance in relation to the right to request flexible working, drafting a flexible working policy or any other employment law or HR matter, please do contact us on 01202 525333 or by email at employment@ellisjones.co.uk, one of our team would be very happy to assist you.

We also run a monthly, free HR forum in conjunction with Rubicon People, it is free to join and an invaluable way to stay up to date with changes to employment law and HR. If you would like to attend, place contact employment@ellisjones.co.uk.