The Expansion of Flexible Working Rights: What You Need to Know

The Flexible Working (Amendment) Regulations comes into force on 6 April 2024, amending the Flexible Working Regulations 2014, making the right to request flexible working a Day One Right. The changes mark a significant milestone in enhancing the legal framework surrounding employment practices.

In this blog, Mohammed Balal, Solicitor and Employment law specialist explores the implications of these amendments, particularly focusing on the introduction of the Day One Right and provides insights into how employers and employees can navigate these developments effectively.

The evolution of flexible working

The concept of flexible working has undergone a profound transformation in recent years, mirroring societal shifts and technological advancements. Recognising the diverse needs and preferences of the modern workforce, organisations have increasingly embraced flexible working arrangements as a means to foster productivity, employee satisfaction, and work-life balance.

The new regulations

The Day One Right

A key aspect of the new regulations is the establishment of the Day One Right. Under the current law, workers have to have been employed for at least 26 weeks before making a request to work flexibly. The new regulations give employees the right to request flexible working arrangements from the start of their employment.

This fundamental change signifies a departure from traditional practices and emphasises the important role of flexibility in contemporary work environments.

How requests will be handled

The employee must submit a written and dated request specifying the change they would like to make, including the preferred start date, and details of any previous requests they have made.

The new act will require employers to consult with their employees when they make a flexible working request before they reject it.

It will also shorten the time that employers have to respond to flexible working requests from three months to two months as per current regulations.

There will also no longer be an obligation for employees to explain the potential impact of their request on the employer or propose methods for dealing with these effects.

The employer must communicate their decision to the employee and it is advisable to put this in writing. Refusal can only be justified based on specific grounds, such as those related to costs, customer demand, and performance impact.

Under the new provisions, if their request is refused, employees will be able to submit two requests within a 12-month timeframe, whereas currently, they are limited to a single request. Employees will not be able to make another request if one is still in process unless two months or longer have passed since the first request was initiated.

The employee can withdraw their application. If the employee fails to attend the consultation meeting or any subsequent appeal meeting without a valid reason, the request will be considered withdrawn on their behalf.

What is flexible working?

Flexible working encompasses an array of arrangements tailored to accommodate individual circumstances and preferences. These may include:

Flexitime: Allowing employees to choose their start and finish times within agreed-upon parameters.

Remote working: Permitting employees to work from locations outside the traditional office setting, such as from home or co-working spaces.

Compressed hours: Condensing the standard workweek into fewer days, providing longer periods of time off.

Job sharing: Allowing two or more employees to share the responsibilities of a single full-time role.

Part-time work: Reducing the number of hours worked per week while maintaining regular employment status.

Can an employer turn down a flexible working request?

Yes, an employer can turn down a flexible working request provided they have carefully considered it and attempted to propose alternative accommodations. An employer can only turn down a request for one or more of these eight reasons:

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.

Although changes to flexible working are not mandatory, with the introduction of new regulations, employers should be looking to support flexible working arrangements where possible.

Benefits for employers

Embracing flexible working changes can yield a multitude of advantages for employers, including:

Increased productivity: Employees who have control over their work schedules are often more motivated and productive.

Enhanced retention: Offering flexible arrangements can improve employee satisfaction and reduce turnover rates.

Expanded talent pool: Flexible working options attract a diverse range of candidates, enabling employers to access a broader talent pool.

Cost savings: Embracing remote work can lead to reduced overhead costs associated with office space and utilities.

Risks for employers

There are potential repercussions for employers who do not follow the new procedure or give the application fair consideration.

Employees have the right to initiate a claim in an employment tribunal if the process is not followed correctly. The tribunal has the authority to grant compensation of up to eight weeks’ pay (presently capped at £643 per week) and may also instruct that the process be repeated.

Employees are also protected from dismissal or any form of disadvantage as a consequence of submitting a request.

If a refusal is proven to be discriminatory, there is a potential to claim uncapped compensation. In cases where the request relates to an employee’s disability, refusal could be a failure to make a reasonable adjustment as outlined in the Equality Act 2010.

Employers should look out for any unconscious biases that may influence their decisions. They should also take steps to ensure consistency in their decision-making processes.

Employee considerations

While the Day One Right affords employees the right to request flexible working arrangements, it is important to understand that employers also have the right to consider these requests carefully. Consideration must be given to operational requirements and the potential impact on their business.

Employees have a responsibility to engage in open and constructive dialogue with their employers when requesting flexible working. This includes being aware of the capacity of their role for flexible working and negotiating mutually beneficial arrangements that meet both party’s needs.

Next steps for employers

To ensure compliance with the flexible working bill, we recommend that employers review their contracts of employment and flexible working policies to ensure they align with the new flexible working legislation.

It is important for managers to establish clear channels for communication with employees about their flexible working preferences and be open to discussing this and taking further action.

Employers should consider taking the opportunity to review their operations to ensure they can facilitate flexible working and that guidance is provided to team leaders, HR and employees generally.

How can Butcher & Barlow help?

The expansion of flexible working rights heralds a progressive shift towards fostering more inclusive and accommodating workplaces. By granting employees the Day One Right to request flexible arrangements, the regulatory changes acknowledge the importance of work-life balance from the onset of employment.

At Butcher & Barlow, we can support both employers and employees in navigating the complexities of flexible working arrangements.

Should you require guidance or advice on the implementation or management of flexible working policies within your business, please get in touch.

Mohammed can be contacted on 0161 764 4062 or mbalal@butcher-barlow.co.uk