As an employer, it’s important to stay informed of the latest legal developments in employment law. This not only protects you from the repercussions of non-compliance but also helps you to be a good employer and protect the well-being of your employees.

Recently, there have been some changes that are worth taking note of, in relation to flexible working requests, under the Employment Relations (Flexible Working) Act 2023. In this short blog, we’re going to run through what these changes mean for employers and employees and what you can do as an employer to ensure that you’re compliant and prepared.

Changes to Flexible working requests

Before 6 April 2024, only one flexible working request in any 12-month period could be made by an employee. What’s more, the employee would only qualify if they had 26 weeks of continuous service by the date the request was made.

This has now changed after the Employment Relations (Flexible Working) Act 2023 came into force on 6 April 2024.

The Act states:

  • Employees will have the right to request flexible working arrangements from day one of employment.
  • Employees are permitted to make 2 flexible working requests in a 12-month period.
  • There’s no requirement for employees to explain the impact (if any) that granting their request will have on the business.
  • An employer must respond to a request within 2 months (if no extension is agreed). This is down from 3 months previously.
  • An employer must consult with the employee if they are considering rejecting a flexible working request.

What this means for you as an employer

As an employer, you should aim to deal with all flexible working requests as reasonably as possible. You should notify the employee of your decision in writing within the two-month decision period, including any appeal. A request can only be refused on one of the specified business grounds (which are set out in the Employment Rights Act 1996) and after consulting with the employee.

If these conditions aren’t adhered to, not only can the employee make a specific complaint to the Employment Tribunal regarding the bad handling of the request, but it can also lead to various other potential claims, such as direct or indirect discrimination (e.g. based on sex, age, disability, religion or belief), unlawful detriment, automatic unfair dismissal, and constructive dismissal.

What are the reasons you can deny a flexible working request under the Employment Rights Act 1996?

An employer’s decision to deny a flexible working request must be for one or more of the following business reasons:

  • The Burden of Additional Costs: If accommodating the request would result in significant extra costs

  • Detrimental Effect on Ability to Meet Customer Demand: If the change would hinder the business’s capacity to meet its client’s needs

  • Inability to Reorganise Work Amongst Existing Staff: If the employer cannot reassign the work effectively within the current workforce

  • Inability to Recruit Additional Staff: If the employer would face difficulties hiring additional personnel to cover the work

  • Detrimental Impact on Quality: If the quality of work or services would suffer as a result of the change

  • Detrimental Impact on Performance: If the employee’s performance or the performance of the workforce would be negatively affected

  • Insufficiency of Work During the Periods the Employee Proposes to Work: If there wouldn’t be enough work during the times the employee wants to work

  • Planned Structural Changes: If the business is planning changes that might affect the work or the position.

The bottom line

With all that in mind, it’s important that as an employer you try to reasonably accommodate requests where possible. However, there’s no obligation to accept a flexible working request if there is a genuine and applicable specific business ground on which to refuse it.

You should also update existing workplace policies (or implement a new one) on flexible working to incorporate the new conditions.

If you require assistance with an employment law matter, our team of experienced employment lawyers are ready and waiting to give you the advice and support needed.

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