Employee wellbeing - Flexible working

In this fourth article in our wellbeing series we’re covering flexible working. 

The flexibility of an employer’s approach to how, where and when its employees work will inevitably have a significant impact on employee wellbeing. The offer of flexible working – which can include, for example, part-time working, working compressed hours, working from home (on a full or part time basis) - is not only beneficial for employees, but for employers too. It is increasingly becoming a critical tool for employers in attracting and retaining talent, as well as in supporting the creation and maintenance of an inclusive workplace culture.  

In light of the above, flexible working is now voluntarily offered by many employers, but HR teams will also be aware of the statutory right for employees to request flexible working. This right has adapted over time in response to the increasing value placed on flexibility at work. The Covid-19 pandemic opened the eyes of many to new ways of working that they may not previously had considered a viable option, including working from home on a full or part-time basis. In part as a result of this, the law around flexible working requests has been subject to recent change. 

The Government's flexible working legislation (the Employment Relations (Flexible Working) Act 2023) passed into law on 20 July 2023. When brought into effect, now expected to be in April 2024, this Act will introduce a number of changes to an employee's right to request flexible working:

• Employees will be able to make two requests per year rather than one, although employees can only have one “live” request at a time.
• Employers will now need to consult with an employee before rejecting all or part of their flexible working request. The Act does not stipulate what that consultation should cover, how long it should last or how it should be conducted. We suggest that a meeting, whether held in-person or online, to discuss the employee’s request (e.g. their motivations for making the request, any concerns the employer might have about granting the request etc.) would be sufficient. No consultation is required if the request is agreed in full. 
• The requirement for employees to explain what impact they think their requested change would have on the employer’s business and how that effect could be dealt with has been removed, although this may come up as part of the consultation process referred to above in any event.
• Responses to requests must now be made within two months rather than three.

Separate legislation has now been passed which means that, from 6 April 2024, the right to make a flexible working request will be a “day one” right such that there is no continuous service requirement. There will also be a new accompanying statutory ACAS Code, which is also likely to come into effect in April 2024. 

These changes clearly make it easier for employees to make flexible working requests and make it slightly harder for employers to reject them. Nonetheless, ultimately the employee’s right is to make a request and there is still no obligation on an employer to grant an employee’s request. Employers may still reject a flexible working request on one or more of the eight lawful bases set out below, but should always consider, and take advice if needed, on any indirect discrimination or failure to make reasonable adjustment risks that could arise from rejecting a request in advance.

Eight lawful bases for rejecting a flexible working request

• the burden of additional costs;
• detrimental effect on ability to meet customer demand;
• inability to re-organise work among existing staff;
• inability to recruit additional staff;
• detrimental impact on quality;
• detrimental impact on performance;
• insufficiency of work during the periods the employee proposes to work; and/or
• planned structural changes.

There will be an inevitable increase in awareness of flexible working rights as a result of these changes, so it is crucial that HR teams update their flexible working policies and ensure they are clear on how to respond to flexible working requests once the legal reforms come into effect later this year. 

The upcoming changes also mean that now is a great time for businesses to be thinking about whether they can better utilise flexible working for the purposes of talent retention, improving employee wellbeing and creating/maintaining an inclusive workplace culture as mentioned above!

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Employee wellbeing series

Other articles in the series so far:

1. Employee wellbeing
2. Menopause in the workplace
3. Supporting employees through fertility challenges
4. Flexible working
5. Carer's leave
6. Key Employment Law Changes April 2024