5th February 2024
The right to request flexible working has been around for over 20 years, and in that time eligibility to the right has been extended from parents and carers of young children to all employees after 26 weeks in a job. Access to this right is about to widen again with changes coming into force this year. Accompanying the legislative changes is a new draft Acas statutory Code of Practice, subject to parliamentary approval.
‘The right to request flexible working is just that; a right to ask, which employers can refuse based on a statutory business reason,’ explains Sarah Everton, Head of Employment Law at Myers & Co. ‘Having said that, employers do need to follow the statutory process, which is about to be tweaked in the employee’s favour. Perhaps more significant than the penalties for failure to follow the process, are the risks of a discrimination claim and damage to recruitment and retention.’
Sarah highlights different types of flexible working, the process and the upcoming changes, the legal risks and ways to minimise them.
Post-pandemic, flexible working is far more common and takes many forms with flexibility in:
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 and the changes are:
Employees can bring a claim in an employment tribunal for failure to follow the process. A tribunal may award up to eight weeks’ pay as compensation (currently capped at £643 per week) and order that the process is rerun.
With the agreement of both parties, a dispute can be referred to the Acas Arbitration Scheme.
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 ‘all bark and no bite’. However, employees are also protected from dismissal or being subject to a detriment because they have made a request.
If a refusal can be shown to be a discriminatory act, there is the risk of uncapped compensation. If the request relates to an employee’s disability, a refusal could be a failure to make a reasonable adjustment under the Equality Act 2010. For example, an employee with anxiety which is exacerbated by being in a crowded place may ask to change their working hours to allow them to commute at quieter times. An unjustified refusal of a request made by a female employee to facilitate childcare arrangements, could amount to indirect discrimination because women are regarded by tribunals as usually being the primary carer.
The consultation meeting is a good opportunity to sensitively and confidentially discuss these issues to ensure that they are properly understood and taken into account. Employers may need to be careful about any unconscious bias at play. Decision makers should ask themselves if their decision is tainted by any preconceptions, for example that a young employee is likely to be less productive working from home than an older employee. Employers should also check that they are being consistent in their decisions.
Not every employer will agree with the Acas enthusiasm for flexible working, but not following the process and missing any potential discrimination can lead to risks of tribunal claims and employee disengagement. We can provide you with a suitable policy to ensure your processes are up to date and help you minimise the risks.