Changes to Flexible Working Requests and Their Legal Implications – As Per UK Law

Are you considering requesting flexible working hours but unsure about your rights? Maybe you’re wondering if the shift toward work flexibility is just a trend or well-supported by UK law. You’re not alone in seeking clarity. Over the last few years, flexible working has become popular as companies and workers look to enhance efficiency while ensuring a work-life balance. Recent legal reforms have emphasised these shifts in the work culture and approach to employee well-being, changing how requests for flexible working must be handled and implemented. In this article, we address the recent developments in requests for flexible working, set out the legal backdrop to such requests, and consider what is likely to follow for both employers and their staff.

Many UK workers are exploring their options for flexible working, especially in the wake of recent global events. But did you know that the right to request flexible working has been a part of UK employment law for years?

The Evolution of Flexible Working Requests

While many assume that flexible working arrangements are a product of the recent pandemic, UK legislation has long supported the integration of work-life balance into the business model. The Employment Rights Act 1996, for instance, was a foundational step, allowing workers to request flexible working hours for childcare.

Contrary to popular belief, flexible working isn’t just a post-pandemic phenomenon in the UK. The concept has been evolving in British employment law for over two decades. Let’s trace this evolution:

Early Steps: The Employment Rights Act 1996

The foundation for flexible working rights was laid with the Employment Rights Act 1996. While this act didn’t specifically mention flexible working, it established important employee rights and set the stage for future developments.

Introduction of Statutory Right: Employment Act 2002

The real breakthrough came with the Employment Act 2002. This legislation introduced the statutory right for parents of young children to request flexible working arrangements. It was a significant step, recognizing the need for work-life balance, particularly for those with caring responsibilities.

Expansion of Rights: Work and Families Act 2006

In 2006, the Work and Families Act expanded these rights. Now, carers of adults were also given the right to request flexible working. This change acknowledged that caring responsibilities extend beyond childcare and can affect workers at various stages of their careers.

Further Extension: Children and Families Act 2014

A major shift occurred with the Children and Families Act 2014. This legislation extended the right to request flexible working to all employees with at least 26 weeks of continuous service. It was no longer limited to parents and carers, marking a significant democratization of flexible working rights.

These legislative changes didn’t happen in a vacuum. They were influenced by, and in turn influenced, societal attitudes and workplace practices:

1. Corporate Pioneers: Companies like BT were early adopters of flexible working. In the late 1990s, BT introduced homeworking for many of its employees, reporting increased productivity and reduced costs.
2. Media Attention: The topic gained media traction in the early 2000s. The Guardian, for instance, ran a series of articles on work-life balance, highlighting the benefits of flexible working arrangements.
3. Political Support: Various politicians championed the cause. In 2010, then-Deputy Prime Minister Nick Clegg spoke about making flexible working “a reality for all”, not just a privilege for some.
4. Economic Factors: The 2008 financial crisis led many companies to consider flexible working as a way to reduce overhead costs while retaining talent.
5. Technological Advancements: The rapid development of communication technologies made remote working more feasible for a wider range of jobs.

The onset of COVID-19 dramatically shifted the landscape, turning what was once a perk into a necessity. High-profile endorsements from leaders in various sectors underscored the benefits, pushing for more robust legal frameworks to support flexible working.

Recent Developments: Employment Relations (Flexible Working) Act 2023

The most recent chapter in this evolution is the Employment Relations (Flexible Working) Act 2023. This act, which received Royal Assent on 20 July 2023, introduces several key changes:

1. Day One Right: Employees can now request flexible working from their first day of employment, removing the previous 26-week qualifying period.
2. Multiple Requests: Employees can make two flexible working requests in any 12-month period, up from one.
3. Faster Response Time: Employers must respond to requests within two months, down from three.
4. Consultation Requirement: Employers must consult with employees before rejecting a flexible working request.
5. Reason Explanation: If rejecting a request, employers must explain why the proposed working arrangements can’t be accommodated.

These changes aim to make flexible working more accessible and the process more transparent. They reflect a growing recognition of the importance of work-life balance and the diverse needs of the modern workforce.

The impact of these legislative changes has been significant:

1. Increased Uptake: According to the CIPD’s Flexible Working Practices Survey 2019, 54% of UK workers were working flexibly in some way.
2. Productivity Gains: A study by the AAT (Association of Accounting Technicians) in 2018 found that 73% of flexible workers said they were more productive.
3. Talent Attraction and Retention: LinkedIn’s Global Talent Trends 2019 report showed that 36% of UK professionals considered flexible work arrangements to be very important when choosing a job.
4. Gender Equality: The Women and Equalities Committee report in 2016 highlighted flexible working as a key factor in reducing the gender pay gap.
5. COVID-19 Acceleration: The pandemic forced many companies to adopt flexible working practices. A YouGov survey in 2020 found that 57% of British workers wanted to continue working from home after the pandemic.

Working from home leads to flexible working arrangements, such as part-time schedules and job shares. Only recently, in many jurisdictions, employees needed to satisfy rigours requirements before making a flexible working request, which was lengthy and burdensome. That said, new laws want to streamline these options and are considering the practicality of a more flexible workforce.

The Role of Media and Political Advocacy

The media has played a crucial role in shaping public perception and normalizing the conversation around flexible working. Let’s examine their stance and impact:

Media Stance on Flexible Working

Overall, mainstream UK media has been largely supportive of flexible working arrangements, though the coverage has been nuanced:

• Positive Coverage:

• The Guardian has consistently advocated for flexible working, often highlighting its benefits for work-life balance and gender equality.
• The Financial Times has reported on the economic benefits, featuring studies showing increased productivity in flexible work environments.

• Balanced Reporting:

• The BBC has provided balanced coverage, discussing both the advantages and potential drawbacks of flexible working.
• The Times has explored the complexities, including articles on the challenges of managing remote teams and maintaining company culture.

• Critical Perspectives:

• Some outlets, like The Daily Mail, have occasionally published pieces questioning the long-term viability of widespread remote work, citing concerns about productivity and social isolation.

Real-World Data:

1. Tech Giants as Trendsetters: UK media extensively covered how companies like Google and Facebook adopted flexible policies, influencing public opinion and other businesses.
2. Small Business Success Stories: Local newspapers and business publications have featured stories of small UK businesses successfully implementing flexible work arrangements, providing relatable examples for readers.
3. Pandemic Coverage: During COVID-19, media attention on flexible working surged. The Telegraph, for instance, ran a series of articles on “The Future of Work,” exploring how companies were adapting to remote work.

Political Advocacy

Political figures have also played a significant role in shaping the flexible working narrative:

1. Cross-Party Support: Both Conservative and Labour politicians have expressed support for flexible working rights.

• In 2019, then-Conservative MP Helen Whately introduced a bill to make flexible working the default option for all employees.
• The Labour Party included a pledge to give workers a “right to flexible working” in their 2019 manifesto.

1. Government Initiatives: The UK government launched a consultation on making flexible working the default in 2021, signaling a potential shift in policy direction.
2. Local Government: Some local councils, like Lambeth Council in London, have been vocal advocates for flexible working, implementing policies within their own workforce and encouraging local businesses to do the same.

Social Media and the Promotion of Nomad and Hybrid Work

Social media platforms have become powerful tools in promoting and normalizing new work models, particularly nomadic and hybrid work arrangements:

Nomadic Work Promotion

1. Instagram Influence: The platform has seen a surge in “digital nomad” influencers showcasing the lifestyle of working from exotic locations. Hashtags like #DigitalNomadUK have gained popularity.
2. LinkedIn Discourse: Professionals share experiences and advice on transitioning to nomadic work, with many UK-based consultants and freelancers leading the conversation.
3. YouTube Channels: Several UK YouTubers document their lives as digital nomads, providing practical advice and inspiration. Channels like “Kinging-It” have garnered significant followings.

Hybrid Work Advocacy

1. Twitter Debates: The platform has hosted numerous discussions on the merits of hybrid work models, with UK business leaders and employees alike sharing perspectives.
2. Facebook Groups: Communities focused on remote and hybrid work have flourished, with groups like “UK Remote Workers Network” providing support and resources.
3. TikTok Trends: Short-form videos showcasing home office setups and hybrid work routines have gone viral, normalizing the concept for younger audiences.

Impact on UK Work Culture

1. Employer Branding: Companies use social media to showcase their flexible work policies, attracting talent who prioritize work-life balance.
2. Employee Advocacy: UK employees share their positive experiences with flexible work on platforms like LinkedIn, influencing both peer and employer perceptions.
3. Real-time Feedback: Social media provides immediate feedback on flexible working policies, allowing companies to quickly gauge employee satisfaction and adjust accordingly.
4. Networking Opportunities: Platforms like Meetup.com have seen an increase in groups focused on co-working and networking for remote and hybrid workers in the UK.

The role of media, political advocacy, and social media in promoting flexible work arrangements has been significant. While the overall narrative has been largely positive, it’s important to note that these platforms also highlight the challenges and ongoing debates surrounding these new work models. As the conversation continues to evolve, they will likely play a crucial role in shaping the future of work in the UK.

Fundamental Legal Changes to Flexible Working Requests

The following are the fundamental legal changes to flexible working requests:

Expansion of Eligibility

One of the most significant changes is the broadening of eligibility for flexible working requests:

• Previous Situation: Flexible working requests were mainly limited to carers or those with specific circumstances.
• Current Situation: The legislation now allows all employees to request flexible working arrangements, regardless of their personal circumstances.
• Practical Impact: This change recognizes that flexibility can benefit a wide range of employees, not just those with specific needs. For example, an employee might request flexible hours to pursue further education or to manage a long commute.

Streamlined Request Process

The process for requesting flexible working has been simplified:

• Previous Situation: Employees had to wait 26 weeks before being eligible to make a request.
• Current Situation: Employees can now submit requests after just six months in a job.
• Response Timeline: Employers must respond within a specified timeline, preventing open-ended queries.
• Practical Example: A new employee who has been with the company for seven months can now request to work from home two days a week to better manage childcare responsibilities.

Legal Implications for Employers

The recent changes to flexible working requests carry several legal implications for employers:

Obligation to Consider Day-One Requests

1. What it means: Employers must now consider flexible working requests from an employee’s first day of employment.
2. Legal impact: This requires employers to be prepared to handle such requests immediately upon hiring new staff.
3. Practical example: A new marketing executive requests a four-day work week during their first week. The company must have processes in place to consider this request promptly and fairly.

Managing Multiple Requests

1. What it means: Employees can make two flexible working requests in any 12-month period.
2. Legal impact: Employers need systems to track and manage multiple requests from the same employee.
3. Practical example: A sales representative requests remote work in January and then asks for compressed hours in October. The HR department must be able to handle both requests independently and fairly.

Shorter Response Timeframes

1. What it means: Employers must respond to requests within two months, down from three.
2. Legal impact: This necessitates more efficient decision-making processes and potentially faster consultation with relevant departments.
3. Practical example: A manufacturer receives a flexible working request from a production line worker. They now have only eight weeks to assess the impact on shifts, consult with operations managers, and make a decision.

Mandatory Consultation Process

1. What it means: Employers must consult with employees before rejecting a flexible working request.
2. Legal impact: This adds a formal step to the consideration process, requiring employers to engage in meaningful dialogue with employees.
3. Practical example: A tech company is considering rejecting a developer’s request to work nights instead of days. Before doing so, they must schedule a meeting to discuss concerns and potential alternatives with the employee.

Requirement for Detailed Explanations

1. What it means: If rejecting a request, employers must explain why the proposed working arrangements can’t be accommodated.
2. Legal impact: This increases the burden on employers to thoroughly assess and document their decision-making process.
3. Practical example: A retail store denying a cashier’s request for flexible start times must provide specific reasons, such as the need for consistent coverage during opening hours and the impact on customer service.

Protection Against Discrimination Claims

1. What it means: Employers must ensure that their handling of flexible working requests doesn’t inadvertently discriminate against protected groups.
2. Legal impact: This requires careful consideration of each request in the context of equality laws.
3. Practical example: A law firm must be cautious when considering flexible working requests from both male and female employees with childcare responsibilities to avoid potential sex discrimination claims.

Handling Appeals

1. What it means: Employers must have a process in place for employees to appeal denied flexible working requests.
2. Legal impact: This requires establishing a fair and transparent appeals process, potentially involving senior management.
3. Practical example: An accounting firm denies an accountant’s request to work remotely full-time. They must be prepared to review this decision if the employee appeals, potentially involving a different manager in the reconsideration process.

Risk of Tribunal Claims

1. What it means: Failure to handle requests properly can result in employees taking cases to employment tribunals.
2. Legal impact: This increases the potential for legal costs and reputational damage if processes are not followed correctly.
3. Practical example: A construction company that consistently fails to respond to flexible working requests within the two-month timeframe could face multiple tribunal claims, resulting in financial penalties and damage to their employer brand.

Balancing Flexible Working with Business Needs

1. What it means: While employers must consider all requests, they retain the right to refuse based on legitimate business reasons.
2. Legal impact: Employers need to clearly define and document what constitutes a legitimate business reason for refusal.
3. Practical example: A hospital might refuse a surgeon’s request for completely flexible hours due to the need for consistent emergency coverage, but could explore partial flexibility in non-emergency work.

Updating Policies and Procedures

1. What it means: Employers need to review and update their flexible working policies to reflect the new legal requirements.
2. Legal impact: Outdated policies could lead to non-compliance and potential legal issues.
3. Practical example: A medium-sized IT company needs to update its employee handbook, internal HR processes, and manager training materials to reflect the new two-month response time and consultation requirements.

While the changes present challenges in terms of administration and decision-making, they also offer opportunities for increased employee satisfaction, broader talent pools, and potential cost savings.

Legal Implications for Employees

Enhanced Right to Appeal

The appeal process for denied requests has been improved:

• Transparency: Employers must now provide better reasons for denying a flexible working request.
• Formal Review Process: There is now a more structured process for appealing a denial.
• Serious Consideration: Employers are required to consider requests seriously and fully justify any refusal.
• Practical Impact: An employee whose request to shift their working hours was denied can now expect a detailed explanation and has a clearer path to appeal the decision if they feel it wasn’t given due consideration.

Compliance Requirements

Employers must now adhere to stricter compliance requirements as per the Employment Relations (Flexible Working) Act 2023:

1. Day One Right: Employees can request flexible working from their first day of employment.
   • Practical Example: A new hire can immediately request a four-day work week if it suits their needs better.
2. Multiple Requests: Employees can make two flexible working requests in any 12-month period.
   • Practical Example: An employee who requested and was granted part-time hours in January can make another request in June to work remotely.
3. Faster Response Time: Employers must respond to requests within two months, down from three.
   • Practical Example: If an employee submits a flexible working request on March 1st, the employer must respond by May 1st at the latest.
4. Consultation Requirement: Employers must consult with employees before rejecting a flexible working request.
   • Practical Example: Before denying a request for compressed hours, an employer must discuss alternatives or compromises with the employee.
5. Reason Explanation: If rejecting a request, employers must explain why the proposed working arrangements can’t be accommodated.
   • Practical Example: An employer denying a work-from-home request must provide specific reasons, such as the need for on-site customer interaction or team collaboration.

Consequences of Non-Compliance

Failure to comply with these new requirements can have serious implications for employers:

1. Legal Challenges: Employees can bring claims to an employment tribunal if they believe their request wasn’t handled properly.
2. Compensation: Tribunals can order employers to reconsider the application and/or award compensation.
3. Reputational Damage: Non-compliance can lead to negative publicity and difficulty in attracting and retaining talent.
4. Practical Example: A company that consistently fails to respond to flexible working requests within the two-month timeframe could face multiple tribunal claims, resulting in financial penalties and damage to their employer brand.

Record-Keeping and Documentation

Employers must now keep records of any flexible working request and the decisions made. This documentation is essential to demonstrate compliance with the compliance with the law  and resolve potential disputes.

Conclusion

The new rules surrounding flexible working requests signal an essential change in legal regimes and demonstrate an understanding of work-life balance by increasing emphasis on businesses adopting more agile working methods. As employers, this means strategic compliance and awareness of significant new responsibilities.

The reforms provide more opportunities and greater protections for employees. Given the changing nature of working today, employees and employers need to be aware of their respective rights and obligations to adequately and fairly manage flexible work. By embracing these changes, employers and employees can adapt to the new legal framework for a more open and flexible work life.