Employment Rights Act Update #25 – flexible working

It seems like Number 10 North has embraced back to school September and has started churning out the consultation responses.  A tad selfish given I've been on leave for the first time in September following two decades of school holidays only! The first response concerns flexible working and the proposed changes to the current system. The press have drilled down on this being the way employers will bring staff back into the office and ban WFH. That is a tad reductive -  although working from home could be the subject of a flexible working request, there are many others which an employer may have to consider. 

Current flexible working provision

• Employees can request flexible working from day one of their employment. That request should outline the change that is being proposed, and when they would like it to start. Two requests can be made in any 12 month period.  
• An employer must handle requests in a reasonable manner, depending on the circumstances and in line with the ACAS code of practice.   
• An employer can either accept or reject the request.  If it is the latter, the employer must consult with the employee before refusing, although there is little detail as to what that consultation looks like.  The grounds for refusal must be one of the eight statutory grounds.

Flexible working request from Autumn 2027

• Any refusal of a request must be based on one of the statutory grounds and must be reasonable in the circumstances.  This is an important step and one which the Government hopes will result in fewer requests being refused.  An employer will need to provide an explanation as to why the refusal is reasonable to the employee and they will be able to challenge that decision.  
• A more structured consultation process will be introduced into the statutory process. If the employer intends to reject a flexible working request, they must hold a meeting with the employee and consider the feasibility of the requested arrangements, address the challenges and, where necessary ,explore suitable alternative arrangements.  The overriding purpose of the meeting will be to reach an agreement with the employee and not just to pass on the message that their request has been declined. 
• The meeting must be held within the two month period for making the decision and the employee must be given reasonable notice of the meeting and be informed of its purpose.  
• After the meeting, employers will have to provide written notification of the outcome of the meeting and the outcome of the request.
• A statutory right of appeal will not be included in the process as was originally suggested.  
• These provisions will be laid out in Regulations and the ACAS code of practice updated to reflect these changes.

What will this mean in practice?

The Government has been clear in its intention to sharpen the teeth of the current flexible working scheme. Their view is that employers need to be more amenable to requests and consider them more carefully before reaching for one of the statutory refusal reasons.  

Their two pronged attack - placing an objective reasonable test and stricter processes - will impact employers.  Many employers already give these requests serious thought, anxious to retain staff and provide them the working patterns they need. There will, however, inevitably be times when operational requirements mean that such requests can't be met.  Employers will then need to think more carefully about their approach and document their decision making according to the parameters of the reasonable test.  

Whilst the remedy for non compliance with the statutory scheme at tribunal is not being changed (an order for employer to reconsider the request and/or compensation of up to eight weeks' pay), tribunals will delve more deeply into the reasonableness of any rejection and hence the chance of a discrimination issue being identified is higher.  Employers who take a more relaxed approach and are willing to face the risk of a tribunal claim may want to consider this risk before continuing with their ‘relaxed’ stance. The greater danger, however, may be the valuable employees who choose not to battle at tribunal but leave their employers, enticed by another organisations more willing to consider their flexible working request.  

What should employers do in preparation?

The changes do not take effect until Autumn 2027, so there are no immediate steps. We would advise that employers wait until the draft statutory guidance is published on the reasonable test - this will be key and will give an indication of how decisions should be made and what training and information to provide to the relevant decision makers.

In the meantime, an audit of recent applications, your percentage rejections and reasons may offer an overview of your current practices and give an indication of where work may need to be done.  

If you would like any further advice on this please contact us.