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Right to flexible working extended to all employees

30% of employers have seen an increase in staff working from home in the last 12 months

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Employers must consult employees before denying flexible work requests.
Employees must explain the potential impact of their flexible working request on their employer.
55% of working parents consider leaving for another role that has more flexibility.

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The right to request flexible working is on track to improve from 6 April 2024 – when employees can request flexible working from their first day in a new job.

Flexible working was first introduced in 2003 for working parents and carers and it is estimated that flexible working contributes £37 billion annually to the UK economy.  A new survey from Acas, the public body offering free and impartial advice for employers and employees, reveals that 30% of employers have seen an increase in staff working from home in the last 12 months.

Over time, the right has been extended to all employees after 26 weeks of continuous service.  The new Employment Relations (Flexible Working) Act 2023 will introduce other changes that are expected to take effect from 6 April 2024. The new requirements involve employers consulting with their employees before rejecting their flexible working request. Other changes include reducing waiting times for decisions to be made, and an end to the need for the employee to explain what effect the change would have on the employer and how that effect might be mitigated.  

The Acas Code of Practice on handling flexible working requests and accompanying guidance has been revised in line with the new legislation.  

30% of employers have seen an increase in staff working from home in the last 12 months.

Summary of changes includes:  

Service requirement – The current position is 26 weeks (6 months service as an employee) – right to requests only – this will change to day one when employees have the right to request.

Frequency of requests The current position is one request per year allowed – this will change to two requests per year (unless the current position is being considered).

Time to respond to requests – currently three months – this will change to two months and can be extended if agreed by both parties.

Content of requests – Employees must explain the potential impact of their flexible working request on their employer and how to mitigate this this will change to no requirement

Rejection – Currently there is no requirement to consult –  this will change to – employers being required to “consult” with the employee before a request can be decided, to explore all available options and reasons for rejection

Employees can bring a claim at an Employment Tribunal for failure to follow the process.  If a refusal can be shown to be a discriminatory act, there is the risk of uncapped compensation, and if the request relates to an employee’s disability, a refusal could be a failure to make a reasonable adjustment under the Equality Act 2010.

Not every employer will agree with Acas’ guidance for flexible working, but not following the process and missing any potential discrimination can lead to risks of Tribunal claims and employee disengagement.

Eleanor Rogers, a solicitor in Furley Page’s employment law team said: “The Acas Code of Practice states that the default position should no longer be to reject requests. Employers must follow the statutory process or risk discrimination claims, financial penalties and damage to recruitment and retention.  For example, Working Families’ research shows that 55% of working parents in the UK would consider leaving their jobs for another role that offered better flexibility. From 6 April 2024, the right to request will become a ‘day-one’ right, meaning employees no longer have to wait until they have six months’ service with an employer before being eligible to make a request.”

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