From 6 April 2024 the right to request will apply from day one of employment and applies to all employees.
A new Acas Statutory Code of Practice provides guidance on how employers should deal with such requests.
As recognised by Acas Chief Executive, Susan Clews
“There’s been a global shift and changed attitudes towards flexible working. It has allowed more people to better balance their working lives and employers have also benefitted from being an attractive place to work for staff that value flexibility. There has been a substantial shift in flexible working globally, which has allowed more people to better balance their working lives and employers have also benefitted from being an attractive place to work.”
The Right to Request
The right to request flexible working is a right to request. It is not a right to flexible working.
Employers can refuse the request based on a statutory business reason.
Nonetheless, the Acas Code of Practice states that the default position should no longer be to reject requests and it is important that employers follow the statutory process. In addition to the penalties for failure to follow the process there is the overarching risk of a discrimination claim
What is flexible working?
Post pandemic, flexible working is widespread and takes many forms with flexibility in terms of:
- Working hours, including flexitime (giving time off in lieu), part time working hours, annualised hours, compressed hours, and term-time-only hours (when);
- Remote and hybrid working (where); and
- Job sharing (how).
Procedure
From 6 April 2024, the right to request will become a ‘day-one’ right, meaning employees no longer have to wait until they have six months’ service with an employer before being eligible to make a request. The new Employment Relations (Flexible Working) Act 2023 will introduce other changes that are also expected to take effect from 6 April 2024.
Key aspects of the process are:
- The employee’s request must be in writing and dated, as well as specifying the change requested, when they would like this to start, and the date they made any earlier request.
- The employer has an obligation to deal with the request reasonably.
- Following the request, the employer will have two months to deal with the request .The employer and employee can agree to extend this period.
- The Code suggests that employers carefully consider the effect on the employer and the impact on the employee if the request is granted or refused.
- Unless the request is fully accepted, employers must invite the employee to a meeting.
- The employer must also consult the employee about the request and its potential effects. The Code suggests discussing alternatives if the request cannot be fully agreed.
- Acas advises to allow the employee to be accompanied at the meeting and to give a right of appeal against a refusal.
- If the request is refused, employees will be able to make two requests in a 12-month period. Employees will not be able to make another request if one is still in process unless two months (or longer if agreed) have passed since the ongoing process was initiated.
- The employer must inform the employee of the outcome. Acas advises this is done in writing. Any refusal can only be based on specific grounds. These include grounds relating to costs, customer demand and impact on performance.
- The employee may withdraw their application. The request will be treated as withdrawn if the employee fails to attend the meeting or any appeal meeting without good reason.
Dispute Resolution
If a request is refused an employee can bring a claim at an Employment Tribunal for failure to follow the process. A tribunal may award up to eight weeks’ pay as compensation currently capped at £700 per week (April 2024) and order that the process is repeated.
A dispute can also be referred to the Acas Arbitration Scheme.
Discrimination
Given the wide grounds for refusing a request and the limited penalties faced by employers for failing to follow the process, the right to request has sometimes been seen as somewhat toothless. Employees are protected from dismissal or being subject to a detriment because they have made a request, however perhaps more potently a refusal may also be evidence of discrimination, usually sex or disability discrimination as working mothers are often those who make such requests upon their return to work following maternity leave (and are statistically more likely to be the primary carer) or those who need flexibility due to a disability or due to other caring responsibilities. If the request relates to an employee’s disability, a refusal could be considered discrimination if constitutes a failure to make a reasonable adjustment. Older workers or those who are undergoing the menopause may also need adjustments to their working patterns, which if unreasonably refused may also give rise to assertions of discrimination on the grounds of age or disability.
If the refusal is proven to be discrimination compensation is uncapped.
It is crucial that employers make full use of the flexible working request process to gauge an employee’s needs and to genuinely discuss and consider these, rather than reaching a knee jerk decision that the way the role has been undertaken is the only way it can be.
Pre-conceived ideas, discriminatory views and unconscious bias must not play any part in the decision-making process and those in decision making roles should ask themselves if their decision is tainted by any such preconceptions, for example that an employee is likely to be less productive working from home or working compressed hours.
Consistency, fairness and an objective assessment of the employee’s request will help to avoid both a loss of morale, talent and the risk of a tribunal claim and will also help create a positive culture around flexible working, improving recruitment and retetention.
If you require a flexible working request policy, get in touch, likewise if you would like support and guidance in raising such a request, we are here to help and support you.