The Flexible Working Bill
The new Employment Relations (Flexible Working) Bill received Royal Assent on 20 July 2023. Once in force, this new bill will allow changes to the existing right to request flexible working hours. Changes will include those who will be entitled to request flexible working and will also place an obligation on employers to consult with the employee before reaching a decision in response to any flexible working request.
When am I entitled to ask for flexible working?
Current arrangements allow employees with 26 weeks of continuous employment to make a flexible working request under the Flexible Working Regulations and employees are limited to 1 request in any 12-month period. Under the proposed changes this will potentially change to two requests allowed per 12 months. The bill also proposed that an employee be allowed to request flexible work from day one of their employment, eliminating the current requirement of 26-weeks continuous service.
Why might a request for flexible working may be refused?
Whilst the bill proposes that employers will be required to consult with their employees to discuss the reasons for the request and other possible options before rejecting those requests, there are currently 8 potential reasons to refuse a request under section 80G of the Employment Rights Act;
- the burden of additional costs;
- detrimental effect on ability to meet customer demand;
- inability to reorganise work among existing staff;
- inability to recruit extra staff;
- detrimental impact on quality;
- detrimental impact on performance;
- insufficiency of work during the periods the employee proposes to work; or
- planned structural changes.
Grounds for refusal must be business-related and comply with the legislation, although there is no requirement for a sufficient explanation to be given.
How long does my Employer have to decide?
Employers are responsible for dealing with requests in a timely manner. The bill will reduce the employer’s decision time, from the currently prescribed 3 months to 2 months, before the expiry of which the employer must confirm whether flexible working may be granted.
What if my employer takes excessive time to decide?
Any failure by an employer to deal with a request in such a manner can lead to legal action for breach of statute, or a discrimination claim being made by the employee, depending on the reasons for the request in the first place. An employer should consider the impact this may have in terms of costs and their business’ reputation.
Recent case law
In February this year, Melissa Glover (an assistant store manager) won her appeal against her former employer (Lacoste). Melissa made a flexible working request whilst on maternity leave which her employer refused on the basis that managerial staff must work full-time and be fully flexible.
The Equity and Human Rights Commission (funded Melissa’s appeal) remarked on the outcome of the case: “Part-time and flexible working are important ways of enabling many people to participate in the labour market, for example those with caring responsibilities, such as Ms Glover.”
Whilst flexible working is not an option for everyone in every career, the motion of this bill and the outcome of Ms M Glover v Lacoste UK Ltd reflects a renewed attitude towards flexible working. Fair and proper consideration is essential in dealing with flexible working requests, particularly in consideration of who is making the request (in terms of any potential protected characteristics) and their reasons for doing so.
For an in-depth discussion about this prevalent topic, amongst several others, join us for our Employment Seminar at Beechdown Health Club on 21st September 2023 at 9:30 am.
Be sure to reserve your seat by emailing jessica.bouwer@lambbrooks.com
Our Employment Law Team have wealth of experience advising employees on a wide range of workplace issues. If you are facing issues as an employee or an employer with regards to flexible working requests, please call 01256 844888 or email enquiries@lambbrooks.com.
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.