Flexible working is now a “day one” right: what do employers need to know?

Since 6 April 2024, an employee has been able to make a flexible working request from day one of their employment, under amendments introduced by the Employment Relations (Flexible Working) Act 2023 (the Act). Before this date, the employee needed 26 weeks of service to qualify.

Handling flexible working requests

With flexible working requests now a day-one right, it’s perhaps not surprising that an employer’s first reaction to a request made early in the employment, say in the first week, may be one of frustration. If a new employee has come on board, the expectations of the role should have been made clear during a lengthy (and possibly expensive) recruitment process. The employee has, likely, signed an employment contract which may specify office-based working, at least for the majority of the week. Should an employee then submit their flexible working request after signing the contract, it may be tempting to think that they were “dishonest” by not being upfront during the recruitment process about wanting to work flexibly.

During the Conservative Government’s public consultation into its proposed changes to the flexible working regime, respondents raised the concern that allowing an employee to reopen agreements about work arrangements immediately “could negatively impact the employee-employer relationship”. However, on balance, the pros were found to outweigh the cons. Given this, an employer needs to accept that an employee who makes a flexible working request in week one is simply availing themselves of their statutory right to do so.

An employer should follow its usual procedure for dealing with the request, which should have been revised to reflect that, since 6 April 2024, a request must be dealt with within two months, down from the previous three months.

Can an early flexible working request be refused?

If there are clear operational reasons why the employee needs to be in the office full-time, perhaps because of the seniority of the role, then, having followed due process, the employer can refuse the request under one of the eight permissible reasons for doing so. In particular, a senior employee coming into a new role may be required to be physically present to integrate into the business and with their new team and/or colleagues.

If the request is refused based on sensible business rationale, this can be difficult for an employee to challenge. An Employment Tribunal cannot question the business reasons behind an employer’s decision to refuse a flexible working request and the maximum compensation for a procedural flaw is eight weeks’ pay (capped, currently, at £700 per week).

However, an employer should look carefully at the reasons given by any employee for making a request and assess whether they might have additional protection under the discrimination provisions of the Equality Act 2010. Typically, this will arise where requests are made to vary working arrangements to accommodate religious requirements, a disability, or childcare commitments.

Notwithstanding any irritation caused, it may still serve the business better to accommodate the employee’s request. It may be better than the alternative of having to re-launch a search-and-recruitment process. The employer could agree to some amount of home working, even on a trial basis, and/or to revisit the request in, say, six months.

Another important change that took effect from 6 April 2024 is that an employee may now make two requests under the statutory regime in any 12-month period, an increase from one in the same period previously. Therefore, now there is even more reason to try to find a workable compromise, given the possibility of a second request being made in relatively short order.

It is also imperative that, once a request has been dealt with, the employer does not react negatively, however subconsciously, to the fact that it was made. An employee has the right not to be subjected to detriment because they made a flexible working request. Dismissal for that reason is automatically unfair and the employee does not need the usual two years’ service to bring a claim against the employer.

If you have questions or concerns about a flexible working request made by an employee, please contact Katie Clark.