Employers: get ready for enhanced employee rights to flexible working
As part of its mission to ‘make work pay’, the UK government has confirmed plans to encourage further take up of flexible working. The proposals, to ‘strengthen’ employee rights to flexible working, are aimed squarely at helping working parents to balance work and home life.
Flexible working generally covers working arrangements outside of the typical 9-5 that suit both the employee and employer in terms of when, where, and how work is done. It could take the form of:
- Part-time, staggered or compressed hours
- Remote working or working from home
- Hybrid working
- Flexitime
- Job shares
Flexible working, ever more prevalent since the outbreak of Covid-19, is a key feature of modern employment. Moreover, it’s become a common pre-requisite for many ‘would be’ new starters when looking for roles with prospective employers.
What’s the current legal position?
Employees have the right to request flexible working on their first day, and to make up to two requests per year.
Employers can refuse to grant any request citing any one of the following reasons:
- It’ll cost too much
- Work cannot be reorganised among other staff
- Additional staff cannot be recruited
- Negative effect on quality of work
- Negative effect on ability to meet customer demand
- Negative effect on performance
- Insufficient work for the employee to do for when they’ve requested to work
- Planned changes to the business (for example, reorganisation or structural change to the business that make the request unviable)
The Employment Relations (Flexible Working) Act 2023 removed certain limitations restricting an employee to one request in any period of 12 months, and to have accrued at least 26 weeks’ service. This changed in 2024. The legislation also removed the requirement for an employee to explain what effects they think the request would – if implemented – have on their employer, and how those effects might be mitigated.
What’s changing?
The government’s proposals would come into effect as part of the broader Employment Rights Bill. An enhancement to flexible working is but one of several updates that should come into effect over a staged implementation throughout 2025, 2026 and 2027. The much-publicised legislation is expected to shake up employment law to an extent many HR practitioners won’t be used to!
Upcoming changes to flexible working include:
- Only being able to refuse a request if it is reasonable, based on one of the eight existing business grounds
- Requirement to follow a clear consultation process before rejecting a request.
- Providing written justification for any refusal
Importantly, employment tribunals will be able to evaluate an employer’s decision to refuse and decide whether it was reasonable, rather than simply checking if the correct procedure was followed. This might follow a test like that for unfair dismissal. What’s likely to be considered reasonable will only become known with consideration of an expected uptick in tribunal judgments.
Whilst the Bill doesn’t create an automatic right to work flexibly, the proposals would reinforce an apparent status quo. That is, where flexible working is no longer a benefit an employer can bestow, but a necessary and expected term and condition of employment.
How should employers prepare?
Employers are likely to be thinking about people strategies, garnering a competitive advantage, and how they might support their workforce in the year or two ahead. As such, revisiting a commonly held belief, mandate or practice about how work should typically be completed must be a priority.
This could encompass:
- Reviewing past and current practice – would an employer’s recent decision to refuse a flexible working request be considered reasonable, and what evidence would support this.
- Reviewing current policies, procedures and manager training – can employees work flexibly and how does an employer approach this.
- Reviewing your workforce and where you might be vulnerable to an increase in requests (e.g. where an employer has several employees with childcare commitments, it’ll likely become more difficult to resist any request made to work flexibly).
The bill reinforces a status quo: flexible working is no longer a benefit, but a necessary and expected term and condition of employment.
Want to learn more?
Watch our webinar on flexible working which covers these changes and much more.
