What Is Flexible Working and How Should Employers Manage a Request?

In the first of two articles on flexible working, we take a look at the statutory right of employees to request flexible working and how an employer should deal with a statutory flexible working request. In the second of two articles (which can be found here) we consider the potential pitfalls for employers of mishandling such a request.

Statutory Right to Request Flexible Working – The Legal Framework

Since 6 April 2024, eligible employees have had a day one right to make a request for flexible working for any reason pursuant to a statutory scheme (Statutory Scheme) as set out in Part VIIIA of the Employment Rights Act 1996 (ERA 1996) and the Flexible Working Regulations 2014 (SI 2014/1398) (Flexible Working Regulations).

The Statutory Scheme is supported by a statutory Code of Practice on requests for flexible working issued by Acas (the Acas Code), the aim of which is to provide a clear explanation of the law and to give guidance on how to handle such requests. When deciding complaints brought in the Employment Tribunal with respect to the Statutory Scheme, tribunals must take the Acas Code into account when it appears relevant.

In addition to the Acas Code, Acas has published non-statutory guidance on Statutory Flexible Working Requests (the Acas Guidance) which provides further useful guidance on how to handle a request. 

What is Flexible Working?

Flexible working is a broad term relating to working arrangements which deviate from a typical 9-5 office based set up. Such working arrangements can include part time hours, staggered or compressed hours, remote working, hybrid working, flexitime and job sharing.

Who Can Exercise the Statutory Right to Request Flexible Working?

Only those legally classified as employees can make a statutory request for flexible working. An employee can make two requests in any twelve month period and can only have one “live” request with the same employer at the same time.

How Does an Employee Make a Flexible Working Request?

An employee wishing to exercise their right to make a flexible working request must make a written request to their employer which complies with the criteria set out in Section 80F(2) ERA 1996 and regulation 4, Flexible Working Regulations.

How Should an Employer Deal with a Request?

Where an employer receives a flexible working request under the Statutory Scheme, it must:

Deal with the request in a reasonable manner

What is reasonable will depend on each situation however the ACAS guidance states that an employer should:

• Handle all requests in line with its policies and the Acas Code
• Consider requests in the order of the date it received them
• Base its decision on facts without making assumptions
• Make sure managers understand the procedure for handling flexible working requests
• Make a decision in a reasonable timeframe and, in any event, within two months
• Communicate its decision clearly including the reason behind it
• Offer the employee the right to appeal the decision.

Consult the employee before refusing the request

Unless the employer decides to agree a request, the employer must consult the employee before deciding whether to refuse the request. A consultation meeting should be held to discuss the request at which the employee should be permitted to be accompanied.  The meeting should be held without unreasonable delay and be conducted by a person with sufficient authority to make the decision.

Notify the employee of its decision (including any appeal outcome) within two months of receiving the request, or within an extended period if agreed by both parties.

The employer may accept the request, refuse the request or refuse it but propose an alternative.  The employer may also wish to consider offering a trial period in which case, the parties will likely wish to agree a longer time for the employer to give its decision.  Whilst the Statutory Scheme does not provide for, or regulate trial periods, a trial period may be a good way to assess the feasibility of the proposed arrangement.

Accept the request unless it has a genuine business reason not to

An employer can only refuse a request on grounds that the employee has not satisfied the relevant eligibility criteria for making a request or on one or more of the following grounds set out in section 80G(1) ERA 1996:-

• 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 employee proposed to work; or
• Planned structural changes.

The test as to whether or not a particular ground applies is a subjective one on the part of the employer. If the employer considers that one or more of the grounds applies, then the test is satisfied.

Accepting the Request

If the employer accepts the request, the new work pattern will be a contractual variation to the employee’s employment and will be permanent unless otherwise agreed.

The employer should issue what is known as a “Section 4 Statement”. This is a written statement of changes to the employee’s terms and conditions within one month of the changes taking effect. It would also be good practice for the employer to issue a new contract of employment setting out the new terms.

Refusing the Request

Where the employer refuses the request, the employee should be notified in writing accordingly, Whilst there is no statutory requirement to include a “sufficient explanation” as to why a request has been refused on one of the eight grounds, the ACAS Code suggests that the decision should clearly explain the business reason(s) and set out any additional information which is reasonable to help explain the decision.

How Should an Employer Deal with Multiple Requests Simultaneously?

Where an employer receives requests from more than one employee at the same time, the ACAS Guidance suggests that an employer should ensure that it handles them fairly by:

• Considering each request in the order they are received
• Following the same procedure for each request
• Looking at what is possible rather than matching previous decisions
• Not prioritising requests based on people’s personal situations other than when someone is requesting a reasonable adjustment for their disability. In this regard, an employer is not required to make value judgments about the most deserving request. That said, it is almost inevitable that employers will prioritise requests from employees who may have additional statutory protection in the form of a discrimination claim.
• Talking to employees where it unable to accept all the requests about alternative options and try to find a compromise.

The overriding objective will be for the employer to deal with the requests in a reasonable manner.

Ten Practical Tips for Dealing with Requests

In order to reduce the chances of claims being made against them and to increase the prospects of successfully defending any claims, employers should:-

1. Meet the statutory requirements set out in ERA 1996
2. Have written procedures in place to ensure a request is considered promptly and in line with the statutory requirements
3. Seriously consider the request before meeting and consulting with the employee fully
4. Consider implementing a trial period
5. Start from a positive perspective seeking to overcome potential issues rather than simply explaining why a particular pattern cannot work
6. Consider alternatives to the initial request
7. Explain the decision and the reasons for the decision fully and clearly
8. Ensure consistency in decision making and be prepared to explain any inconsistency (for example on the basis that the business’s capacity for flexible working has been reached)
9. Allow the employee to appeal if appropriate
10. Maintain records of decisions to ensure consistency.

Informal Requests for Flexible Working

In practice, employees will often make informal requests to HR or their line manager about the possibility for flexible working. This means that employers must be mindful not only of the statutory right to request flexible working but also informal requests which are not covered by the scheme.

Employers should ensure that they are consistent in dealing with requests. In order to achieve consistency, and depending on the size and resources of the employer, employers may wish to direct all requests for flexible working, whether informal or formal under the Statutory Scheme, to their HR departments or a senior member of staff. 

Proposals for Reform

The Labour government has proposed wide-ranging changes to employment law. In the Employment Rights Bill 2024, the government has proposed introducing a test of reasonableness where an employer refuses a request and a new requirement that the notification of the decision states the ground(s) for refusing the application and given an explanation as to why it considers it reasonable to refuse the application on that ground(s). 

Such changes are not expected to come into effect until 2026.

Considerations

Dealing with statutory flexible working requests, particularly where several requests are received in a short period of time, can be a minefield for employers. As a starting point, employers would be well advised to familiarise themselves with the ACAS Code and to review and update their policies and procedures to ensure that they reflect the Code. When dealing with requests, employers should also be mindful of the potential complaints and remedies available to employees in the event a request is mishandled. These are explored in our second article dealing with flexible working requests which can be found here.

How Can Pinney Talfourd Help?

Our Employment team has extensive experience of advising both employers and employees on all aspects of flexible working including on claims involving flexible working requests. If you would like advice on any aspect arising out of this article or on any related matters, then please contact Charlotte Buck or Alex Pearce.