After years of talk about improving the legal framework to promote more flexibility in the modern working environment, the UK is now on the cusp of changes to its statutory flexible working regime taking effect. Our blog post from August 2023 provides a background to reform and the changes as initially announced. We now provide an update on what is changing and when, and provide our top tips for employers preparing for and managing flexible working requests beginning in April 2024.

What are the current flexible working rules in the UK?

Under current statutory rules, employees with 26 weeks of continuous service have the right to request flexible working, typically seeking changes to their days, hours, pattern or place of work. The request must be made in writing and explain what impact the change would have on the employer and how this can be dealt with. Only one request can be made within a 12-month period, and employers should deal with the request within three months. There is no obligation on employers to accept a request for flexible working but must consider requests reasonably and only reject a request on the basis of one or more prescribed statutory grounds (such as the burden of additional costs, the detrimental effect on the ability to meet customer demand or performance/quality and an inability to reorganise work among existing staff).

What changes are being made to flexible working?

There are five key changes to the current statutory flexible working regime:

  1. Day one right: There will no longer be a requirement for an employee to have 26 weeks service before having the right to request flexible working.
  2. Number of applications: Employees will be able to make two applications in a 12-month period rather than one.
  3. Impact of request: There will no longer be any requirement on employees to explain the impact of their proposed working arrangements when making their application.
  4. Consultation: There is a new requirement that an employer must consult with the employee before turning down a flexible working request.
  5. Timing: Employers must deal with requests within two months, reduced from three.

There are no other changes to the process, for example the right remains one to request (not be granted) flexible working, and there is no change to the business reasons which employers can use to turn down a request. There is also no change to the remedies that an employee may have if a request is not handled properly or turned down unfairly.

When do these changes take effect?

When the reforms were first announced, it was expected they would take effect from summer 2024. However, we now know that the right to request flexible working from day one of employment will apply to requests made on or after 6 April 2024. The other changes are contained in legislation which does not yet have a confirmed commencement date, but it is anticipated that this will also be from 6 April 2024.

Is there any guidance on the new flexible working regime?

Yes, the changes are accompanied by an Acas Code of Practice (the Code) providing guidance on the new legal position as well as practical advice on making and handling requests. This Code is currently in draft form, but it is expected to be in place before the changes take effect. Acas also intends to publish non-statutory guidance to sit alongside the Code, although this has not yet been circulated.

What weight does the Acas Code have?

The Code is a statutory code of practice means that it will, once finalised, have been approved by Parliament. The Code does not impose legal obligations, and any failure to follow it does not in itself give rise to any cause of action. However, it does detail important guidance and best practice for handling requests, and the employment tribunal can take compliance with it into account.

Can an employee have two flexible working requests running at once?

No, only one active request can be running at once. A request will only cease being active if a decision has been made (or an outcome mutually agreed), it has been withdrawn, or the two-month period for dealing with a request has ceased.

What does ‘consultation’ mean before turning down a request?

Where employers are inclined to reject a request, there is a new requirement for them to ‘consult’ before doing so. The draft Code provides some limited guidance on what is meant by this.

The Code states that employers should invite employees to a meeting to discuss their request, and to use that meeting to ensure all relevant information is understood before making a decision. There is emphasis on there being a reasonable discussion and consideration of the request, looking at the benefits and practical implications of the request, and of exploring alternatives or variations to the original request. Whether to have a trial period should also be considered.

Employers are encouraged to engage in positive dialogue with employees, discussing the request in good faith to try and reach an agreement on ways of working.

The Code does not suggest that more than one consultation meeting is needed. Employers should however be able to demonstrate that they acted reasonably in consulting over the proposals.

Can an employer turn down a flexible working request?

Yes, although an employer must rely on one or more of the eight statutory reasons for turning down the request (the burden of additional costs; detrimental effect on performance or the ability to meet customer demand; the inability to reorganise work among existing staff, or to recruit additional staff; an insufficiency of work in the proposed working arrangements; and planned structural changes).

Prudent employers will also consider whether there are any discrimination risks arising from their decision, and if so, be able to objectively justify why a request could not be accommodated.

Although the government stopped short of making flexible working the default position, there is subtle emphasis throughout the Code that employers should be starting from a position that flexible working be supported, exploring what is possible to build flexibility into roles.  

Can the two-month period for dealing with a flexible working request be extended?

Yes, but only by mutual agreement. Where an extension is agreed, this should be confirmed in writing.

Does an employer have to agree a trial period?

There is no obligation to agree a trial period, but one may be appropriate for both parties to explore whether the proposed flexibility is workable in practice.

How long should any trial period be?

There is no prescribed length – any trial period should be the length of time needed for both parties to make a reasonable assessment about whether the proposed flexible working pattern works. The timeline for dealing with a flexible working request does not pause for a trial period. As such we recommend that employers contemplating a trial period reach an agreement with the employee to extend the decision period so that they can allow the trial to run its course. The extension should be long enough to cover an appeal too, in case the trial is unsuccessful.

Is there a right of appeal?

While there is no statutory right of appeal against a decision, the Code recommends that employers offer a right to appeal, to be heard by someone not involved in the original decision wherever possible. It should be noted that the appeal must be heard within the overall two-month period for deciding a request (unless an extension has been agreed).

What if an employer gets this wrong?

Where the statutory regime is not followed, employees can seek compensation before an employment tribunal. The maximum compensation for this is eight week’s pay, where a week’s pay is capped at the prevailing statutory rate.

There are also risks of discrimination claims arising where requests are not treated fairly and consistently. Discrimination claims will be difficult to successfully defend unless the employer can show good business reasons for not being able to offer flexibility.

Employers should also be mindful of the impact that their approach to flexibility may have on their recruitment, retention and engagement of staff.

Top tips for employers:

  1. Review and update policies and paperwork: Employers should update their flexible working policies and any template documents to reflect the changes, including the shorter two-month period for handling requests.
  2. Review processes: Given that the changes will allow more people to request flexible working, employers need to be prepared for a potential increase in applications, and for dealing with them in a reduced timeframe. Internal processes may need amending to ensure requests can be dealt with promptly.
  3. Educate relevant staff: Ensure those involved in the flexible working application process are aware of the changes. Managers, and anyone else dealing with flexible working requests and appeals, should be trained on the new legal position and the company’s updated policies and procedures.
  4. Be open minded: When considering requests, be open minded to what flexibility might be possible. While there is no change to the rules around rejecting requests, the reforms reflect a sea-change in attitudes and expectations to flexibility in a modern workplace.