The right to request flexible working from day one

The law on flexible working could soon be updated.

The Government’s proposal, which is currently passing through the Houses of Parliament, includes the right to request flexible working from day one of employment. If written into law, this would allow employees to make two requests in a 12-month period, introducing a new employer requirement to discuss alternatives to the request, as well as simplifying the procedure to request flexible working.

Ellisons Solicitors, a leading East Anglian law firm, believes this new legislation could protect the benefits flexible working brings to employees’ wellbeing and work-life balance.

Kimberley Clayton, Solicitor at Ellisons Solicitors said: “There is a growing interest in flexible working and the practices we adopted during the pandemic are here to stay.

“Although the Government’s proposals are not set out in any legislation just yet, they emphasise a recognition of the importance employees place on flexible working and indicate that the government hopes to normalise flexible working patterns and make working flexibly more accessible for employees going forwards.”

What rights do employees currently have?

Currently, employees with at least 26 weeks’ continuous employment can make a request for flexible working for any reason.

An employee can make one flexible working request in any 12-month period and the changes they can apply for include the hours they work, the times they are required to work and their place of work.

The employee starts the procedure simply by making a written request. Their employer then has three months to consider the request, discuss it with the employee and notify the employee of their decision.

There is a requirement for the employer to deal with the request in a reasonable manner, and they can only refuse a flexible working request for eligibility reasons or for one (or more) of eight prescribed reasons. These include that the work cannot be given to another member of staff to carry out, or that the business would incur extra costs by granting the request.

If an employer fails to follow this procedure, then the employee can bring a claim to the Employment Tribunal.

What are the Government’s proposals?

Employees will no longer require 26 weeks of continuous employment to request flexible working and it will become a right from day one. The government has emphasised in its response, that this remains a right to request flexible working and not an automatic right for an employee to work flexibly.

Employees will be allowed to make two flexible working requests within a 12-month period rather than one.

The time for employers to respond to a request will reduce from three months to two months.

There will be a duty to discuss alternatives to the request, meaning an employer must consider whether there are alternative forms of flexible working available if they are going to refuse the employee’s request.

The requirement for employees to set out how their flexible working request might impact their employer will be removed and so the procedure for requesting flexible working will be simplified.

There will be no change to the eight reasons an employer has to reject a request for flexible working.

Ellisons Solicitors, which has offices throughout Essex and Suffolk, has embraced flexible working for the past year.

Ellisons’ Ms Clayton said: “Since the Covid-19 pandemic, flexible working, such as homeworking and hybrid working, has been introduced by a number of employers. As we emerge from the pandemic, it seems employees are keen for these practices to continue and would like to maintain the benefits flexible working can bring them in terms of their wellbeing and work-life balance.

Flexible working requests can include not only homeworking and hybrid working but also part-time working, compressed hours, job-sharing and term-time working (amongst other variations) and there are actually a wide range of potential work patterns an employee could request.

If you have any questions about making an application for flexible working or need advice on how to deal with an employee’s request under the statutory scheme then please do not hesitate to contact a member of Ellisons’ Employment Team.”