An employer’s guide to the new flexible working laws

The law changed on 6 April 2024 to modify the flexible working regime. While the fundamental idea of a statutory right to request flexible working is unaffected, and there is still an obligation on the employer to handle that request reasonably, there are now important changes in place that employers and employees must get to grips with and amend their policies accordingly where necessary. These new rules are likely to be fairly uncompromising, with repercussions for non-compliance.

Here we run through the basics of flexible working and explain the recent changes:

What does flexible working mean?
Think of flexible working as an agreement to vary when, where and how an employee will work. This may amount to a request to reduce a five day working week to four, home working or a job share. It’s generally accepted that flexible working can be beneficial for both the employee and the employer – if carefully agreed and managed.

Can an employee ask for flexible working at any time?
Any employee may speak to their employer about their working arrangement at any time. That is not the same as making a formal request for flexible working under the statutory regime, however. While employers must handle all employee matters (including informal requests for part-time working etc) fairly and reasonably, the statutory right to request flexible working, sets a specific framework within which both the employee and employer must operate.

Who can make a statutory flexible working request?
Following recent developments in the law, any employee can make a statutory request for flexible working from day one, instead of having to acquire six-months’ service before doing so. Employers are likely to receive more requests as a result, making it all the more important that line-managers and HR professionals understand their obligations and have a system in place, as well as a detailed policy ensuring a consistent approach.

An employee may now make two statutory flexible working requests in a 12 month period, as opposed to one request every 12 months under the old regime. They no longer need to explain how their proposed flexible working arrangement would work, or how they would reduce any negative impact of the same.

How should an employee make a statutory flexible working request?
The request must be in writing. It must spell out that it is a statutory request for flexible working, and:

• the date the request is made;
• the proposed flexible working arrangement;
• the date they want the flexible working to start; and
• the date of any previous requests for flexible working (or confirmation that this is the first request).

Handling a flexible working request
Flexible working can be beneficial. It assists in navigating the heightened demands on time and availability of a modern day life, can help avoid the effects of burnout, and retains jobs for those who cannot commit to standard working hours. It can also assist with productivity during antisocial hours, and fosters goodwill between employer and employee. Employers who don’t approach requests with an open mind may be disadvantaging themselves (as well a potentially treading dangerous employment law waters).

Employers must handle flexible working requests reasonably. This means genuinely looking into whether the proposed arrangement could, (as opposed to would), work. If it would not be possible in its current form, modification should be considered.

Talking this through with the employee is an important part of the process. If the employer isn’t going to accept the request straight away, they must consult with the employee, without unreasonable delay, before making their decision. This consultation requirement is a new addition to the statutory regime.

The window for dealing with a statutory flexible working request in full is now two months instead of three – which includes going through an appeal. The timeframe can be extended if the employee agrees but they are not obliged to.

An employer can refuse a request for a ‘genuine business reason’ which includes:

• The additional cost would be too much;
• The employee’s work couldn’t be reorganised among existing staff;
• The employer couldn’t recruit staff to take over the employee’s work;
• There would be a detrimental impact on quality, performance, or on the ability to meet customer demand;
• There wouldn’t be enough work available for the periods the employee proposes to work; or
• There are planned structural changes to the business.

What is the process for agreeing a flexible working request?
The employer should write to the employee to confirm the arrangement reached (which may be the arrangement originally proposed, or a modified version as agreed with the employee).

What is the process for refusing a flexible working request?
After consulting with the employee, the employer must give the employee its decision and confirm this in writing without unreasonable delay (and within the two-month period, given the employee may want to appeal). They must explain the reason for their decision.

It is good practice to offer the employee the opportunity to appeal, and to tell the employee how to go about doing that.

Some employers may still see flexible working requests as a burden they would rather avoid. Having the right policies and processes in place, as well as understanding the legal obligations (and the positive aspects of flexible working) however, means a business will be ready and equipped to handle requests in the best way possible. Decisive action should be taken, and changes quickly made to strategy and policy where needed, to get ahead of the likely increase in requests.

For advice on flexible working, or to speak to us about updating your policies, email us at [email protected] or Call our employment law team on 020 7377 2829.

Alex Kiernan