New flexible working measures

Once in place, employees will be entitled to make two flexible working requests of their employer in a 12 month period.  The request will require the employer to consider reasonable changes to the working patterns of the employee, which may include such aspects of their job as their hours worked and the location they are worked in. This comes following a growth in remote working as a result of the Covid-19 pandemic, with both employers and employees keen to take advantage of the greater flexibility that remote working allows.

Once a flexible working request has been made by an employee, the employer must respond within 2 months.  An extension to this timeframe will still be able to be agreed between the parties. Once a request has been received, the employer must hold a consultation meeting with the employee before making their decision (although the legislation does not specify what constitutes a consultation, or how extensive that consultation must be). There shall no longer be any obligation on the employee to specify what effect any such change would have on the business if agreed to or  how the effect could be managed. Although such provisions are currently in place, they are often given little weight anyway as it is usually the employer, as opposed to the employee, who is in the best position to understand the effect granting such a request shall have on the business.

While a ‘day one’ flexible working request had previously been mooted, this has not been included in the bill and an employee will only be entitled to make a flexible working request after 26 weeks in employment with their current employer, alleviating the concerns of many employers, at least for now.  The government have not ruled out introducing secondary legislation that may allow for this in due course.

This procedure shall replace the existing rules which only allowed an employee one flexible working request in a 12 month period and gave the employer three months to respond. If the employer rejects the request, they must give a valid business reason for their refusal, as they were previously required to do. As before, there is no statutory right to appeal if the flexible working request is rejected, although the ACAS Code of Practice on Flexible Working recommends an appeal as a matter of good practice.

In the intervening period, ACAS are currently consulting on changes to the Code of Practice and consultation closes on 6 September. The draft Code is more extensive than the previous version and currently highlights that the default position should not be to reject requests. Unlike the legislation, the Code is likely to go into more detail as to what amounts to good practice for the purposes of consultation. Codes of practice are not legally binding but can be taken into account by the Tribunal when deciding on cases.  Employers are therefore advised to consider them before making any decisions.

CIPD research shows that 6 percent of employees changed jobs last year due to a lack of flexible options.  This equates to almost 2 million workers. 12 percent (4 million workers) left their profession altogether due to a lack of flexibility within the sector. The changes to the flexible working requirements aim to allow for a better work life balance and encourage employers to be more open minded when it comes to such requests.