Flex appeal - Exploring the new statutory flexible working regime

In this article, we consider the new statutory flexible working framework which came into force on 6 April 2024, how employers can appropriately deal with statutory flexible working requests and some of the key risk areas.

Summary of flexible working

Employees in England and Wales have the statutory right to request flexible working. Flexible working refers to any work schedule which deviates from the ‘standard’ Monday – Friday, 9-5pm shift pattern, which has been increasingly seen as somewhat inconvenient and rigid post-pandemic. This could include changes to working hours, working times or place of work. It is important to remember there is only a right to request flexible working, but employers can only refuse a request for one of eight specified business-related reasons. 

Overview of new regime

In the biggest shift to the flexible working regime since 2014, the Employment Relations (Flexible Working) Act 2023 has introduced a number of changes to the regime, effective since 6 April 2024:

• Employees can request flexible working from the first day of their employment (employees previously had to wait for 26 weeks before being eligible to make a request). 
• Employers must consult with the employee if rejecting a request (there was previously no obligation to consult).
• The entire process must be concluded within two months (down from three months previously).  This includes any appeal process, unless an extension is agreed.
• Employees can make two statutory requests in any 12-month period (previously employees could make one request in 12 months) – although note employees could make more requests on an informal basis.
• Employees are no longer required to explain the effect of their request on the employer and how that might be dealt with.

ACAS has also issued an updated Code of Practice on requests for flexible working (the Code). Whilst it does not have statutory force, Employment Tribunals will take the Code into account when considering relevant cases and so employers should generally follow the Code. The key points in the new Code include:

• A recommendation that the starting point for employers should be to consider what is possible, recognising that what may be possible will be unique to each situation.
• Guidance on the new legal requirement to consult, including: inviting the employee to a consultation meeting to discuss their request; allowing for a reasonable discussion and consideration of the request; seeking a way to secure some of the benefits that the original request sought if it is not possible to accept the request in full; and considering whether a trial period may be appropriate to assess the feasibility of an arrangement.
• New ‘good practice’ recommendations, which include:

- allowing employees to be accompanied at meetings to discuss requests;

- after agreeing to a request, offering the employee an opportunity for a discussion to clarify any further information to help implement the arrangement;

- providing additional information which is reasonable to help explain a decision to reject; and

- appointing a different manager to handle any appeal, wherever possible.

In addition to the Code, ACAS has also issued non-mandatory guidance on assessing formal statutory flexible working request (the Guide)[1].

What has stayed the same?

It is still the case that:

• The right to request flexible working is only open to employees (and does not extend to workers, or the self-employed).
• In order to make a statutory flexible working request, employees make a compliant written request (this means the request must be in writing, be dated, state that it is a statutory request, specify the change applied for and the proposed date for the change to become effective, and state whether the employee has made a previous request and, if so, when). Note that an outright rejection of a request on a technicality is unlikely to be looked on favourably either by the employee or by a Tribunal.
• An employer can only refuse a request for one (or more) of the eight statutory reasons. As a reminder, the eight statutory reasons are: (i) the burden of additional costs; (ii) detrimental effect on ability to meet customer demand; (iii) inability to reorganise work among existing staff; (iv) inability to recruit additional staff; (v) detrimental impact on quality; (vi) detrimental impact of performance; (vii) insufficiency of work during the periods the employee proposes to work; and (viii) planned structural changes.
• Whilst there is no statutory requirement to explain why a particular ground applies, the Code suggests that when an employer refuses a request, the written decision should clearly explain the business reason and set out any additional information which is reasonable to help explain the decision. The Guide suggests that this information could include:

- The steps the employer took to investigate whether it could accept the request.

- Any practical aspects of the job that prevented the employer accepting the request.

- Any alternative options the employer considered.

- Any data the employer used to help it make its decision (for example, staffing levels or recruitment costs).

- Any health and safety considerations related to the request.

• Employers must deal with requests in a “reasonable manner”. There is no statutory definition of what dealing with requests in a “reasonable manner” means, but the Code does provide some guidance. 

Dealing with requests in practice

With the above in mind, there are a number of key practical issues which employers need to consider when handling flexible working requests:

• Meet the basic requirements. As above, this means considering the request in a prompt and reasonable manner to ensure the employee receives a decision within two months. The employer should meet with the employee to understand the request, consult with the employee if they plan to reject a request and allow an appeal against the outcome. Clear and comprehensive notes of meetings should be taken and shared with the employee and any decision making should also be documented. Providing an employee with a clear and genuine explanation of why their request cannot be accepted and the efforts that have been made to find an alternative is likely to be helpful from both an employee relations perspective and also to help evidence the decision-making process in any future litigation.
• Approach the request from the perspective of what is possible. On receipt of a request, employers should consider any business issues which the request might present and carefully consider how the employee’s request could be accommodated. If the original request cannot be accommodated, the employer should consider what might be possible and work to identify a mutually acceptable position. The decision over whether to agree or reject a request ultimately remains with the employer, but the new emphasis on consultation and compromise means that employers are at greater risk of a claim if they don’t approach requests positively and consider reasonable alternatives.
• Consider whether a role genuinely cannot be performed flexibly. Often, an employer’s initial reaction on receipt of a request is that the role just cannot be performed on a flexible basis. That may be the case, but employers should stress-test this initial reaction and carefully consider whether that position can be justified. This analysis is particularly important where there is a risk of discrimination – see further below.
• Employers must accept a level of cost and inefficiency. It has long been accepted by Tribunals that employers must accept a certain level of cost and inefficiency to ensure family-friendly workplaces. As such, it will not be good enough to reject a request on the basis that the employer will be put to some cost or will have to adjust its operations. The extent of the cost and inefficiency an employer will be expected to tolerate will be determined on a case by case basis, typically by reference to the employer’s resources and the nature of the business and the role in question.

Dealing with multiple requests at the same time

We have recently advised clients who have received multiple flexible working requests at the same time, typically in response to a change of policy regarding return to the office. In this situation, the Guide recommends the following steps to ensure requests are handled fairly:

• Considering each request in the order they are received.
• Following the same procedure for each request.
• Looking at what is possible, rather than seeking to match previous decisions.
• Not prioritising requests based on people's personal situations, other than when someone is requesting a reasonable adjustment related to their disability.

It also suggests that where an employer receives multiple requests for a similar change and is unable to accept all the requests, it should talk to each employee about alternative options and try to find a compromise. Where it is not possible to reach a solution that works for everyone, the employer should consider each request separately, in the order they were received. The Guide gives the following examples:

• An employee requests to change their start and finish times to finish work at 3pm each day. A few days later another employee requests to change their finish time to 3pm to care for their children. If the employer cannot accommodate both requests, it should talk to each employee to try and find a compromise. If a compromise cannot be agreed, the employer should consider the requests in the order it received them. It should not prioritise the second request based on the employee's personal circumstances.
• Two employees make flexible working requests to have Fridays off. The employer can only accommodate one employee being off on Fridays. It should talk to each employee separately to discuss alternative options and try to find a compromise. If a compromise cannot be reached, the employer should consider each request in the order it received them.

As explored further below, it will always be important to take account of any particular features of a flexible working request, such as childcare / other caring commitments or adjustments to accommodate a disability. In practice, employers may end up prioritising requests from employees who are more ‘high risk’ because they have additional statutory protection – for example, employees returning from maternity leave.

We often see employers saying they cannot accept a request because it will “set a precedent”. This is not a valid reason to reject a request and should not be relied upon. Further, any blanket policy against flexible working requests will almost certainly lead to unfair and discriminatory decisions.

Key risk areas – discrimination

Employees can only be awarded a maximum of eight weeks’ (capped) pay for an employer’s breach of the statutory flexible working regime.  Discrimination claims carry a much greater potential exposure for an employer when turning down a flexible working request. It is not unusual for claims to fail under the flexible working regime but succeed on the basis that the employer’s handling of a flexible working request is in some way discriminatory.

Some common areas of discrimination risk in the context of rejecting a flexible working request include:

• Women with childcare responsibilities / returning from maternity leave. Tribunals have accepted that women still bear the greater burden of childcare and, as such, refusing a request to work inflexible hours / days can amount to indirect sex discrimination. For example, a policy requiring all employees to work in the office five days per week, 9am-5pm may disadvantage working mothers who cannot make those hours due to school pick up times, whereas the requirement to work those hours may not have the same effect on male employees.   Indirect discrimination will be unlawful unless it can be justified as a proportionate means of achieving a legitimate aim.  There have been some high value awards in claims of this type[2].
• Care responsibilities / ageing workforce. As employees are typically working for longer and childcare costs continue to soar, many employees are facing dual caring responsibilities, both helping with care for young grandchildren and elderly parents. Others may have responsibility for caring for a disabled partner or relative.  Employers should take care to avoid assuming that caring responsibilities only affect those with young families.
• Disabilities. Employers have a duty to make reasonable adjustments for employees who are disabled under the Equality Act 2010. Commonly requested adjustments are to alter working hours and/or location, which a disabled employee may also seek via a flexible working request. Aside from some of the more obvious examples, one emerging area is neurodiversity and the impact of full-time office working on neurodivergent employees. For example, the office environment can be particularly distracting and may result in sensory overload, depending on the exact nature of the neurodivergence.     

Case law

As is often the case, the trends we are seeing in practice with flexible working requests have filtered through to Tribunal claims. To give a couple of recent examples:

1. Wilson v Financial Conduct Authority: 2302739/2023

This case was one of the first Tribunal cases to consider hybrid working policies since the Covid pandemic. This was a rare case where there was no discrimination aspect to the claim. Miss Wilson was a senior manager at the FCA and had been working remotely since the start of the pandemic in early 2020. The FCA implemented a policy requiring staff to work in the office for 40% of their working patterns – a common approach amongst employer’s post pandemic. Miss Wilson requested a formal permanent change to her contract to work entirely remotely. The FCA rejected the request on the basis that full-time remote work may have a detrimental impact on her performance and quality of work. In particular, the FCA highlighted the importance of face-to-face interactions for training, supervision, department needs and team spirit, given Miss Wilson’s seniority and managerial position. Miss Wilson referenced that she had been an exceptionally high performer during the period she had worked entirely from home. She also referred to the FCA’s excellent technology enabling remote working and that the FCA’s flexible remote working policy allowed staff to choose what days they attend the office, meaning there was a limited likelihood that she would be seeing the same staff in person regularly in any case. The Tribunal found in favour of the FCA. They had particular regard to fact that the FCA had genuinely considered the merits of the request and provided specific reasons why it may have had a detrimental impact, rather than just applying its policy in a blanket way.

2. Johnson v Bronzeshield Lifting Ltd: 2303313/2022

Ms Johnson’s claim in respect of the rejection of her flexible working request was coupled with a claim for direct sex and disability discrimination, as she argued that her employer failed to take account of the fact, she was going through the menopause in determining her flexible working request. She had asked to reduce her working days from five days to three full days and one-half day, taking Fridays off, due to going through the menopause and needing to care for elderly parents. She said that her colleague who worked part time could cover the days she would not be in the office. She needed Fridays off specifically because her son and partner could not help with her parents on Fridays. Her application was refused on the basis that Friday could be the busiest day for the business, it was not fair on existing staff to cover her work, and it would not be possible to recruit someone new for one day per week. The Tribunal accepted that the business decision maker had little direct knowledge of Ms Johnson’s day to day responsibilities and took no account of the cited link between Ms Johnson’s menopause and her request. Interestingly, the Tribunal found that the business would have been interested to find out what the link was between the condition and the request if she had a different condition, such as cancer – saying that, effectively, the decision maker did not take the employee’s menopause seriously.  This failure amounted to direct disability discrimination on the basis that she was treated less favourably because of her disability. However, the Tribunal found that there was reasonable and proper cause for the refusal of the flexible working request itself, and so the refusal of the request was not disability discrimination. It is worth noting that Ms Johnson was also successful in her constructive unfair dismissal claim for the same reason, i.e., that the business failed to take account of her going through the menopause in rejecting her flexible working request. The Tribunal emphasised that the way in which flexible working applications are dealt with is important, and that employers need to make real effort to understand how disabilities / medical conditions affect individuals and why they are asking for a change to their working patterns.

Conclusion

The new statutory regime on flexible working will no doubt lead to an increase in the number of formal requests received by employers, especially those who are looking to change their policies on hybrid working to shift the balance back towards greater office attendance.  HR and management teams should ensure that they are familiar with the new rules and fully prepared to handle requests made under them. 

If your organisation needs any support in handling flexible working requests, or reviewing any related policies or practices, please do get in touch.

[1] The full Guide can be downloaded as a PDF document from this link.

[2] For example, in Thompson v Scancrown Ltd T/a Manors: 2205199/2019, a female estate agent won a £185,000 payout after her employer refused to allow her to work four days a week and leave the office one hour early to collect her child from nursery following her return from maternity leave.