The Proposed Changes to Flexible Working: A Reality Check

In recent months, the government has been proposing and consulting on changes to flexible working regulations, promising a shift towards a more flexible, modern working environment. Many employees hoped that these changes would empower them to take greater control over how, when, and where they work. However, upon closer inspection, it seems that these changes may not be as revolutionary as initially expected. While some improvements are on the horizon, the reality is that employers still have significant control, and employees may face challenges in actually securing the flexibility they desire.

Recent Changes: A Brief Overview

The most notable of the changes to flexible working laws introduced in April 2024 is employees having the right to request flexible working from day one of employment, rather than having to wait for 26 weeks as was previously the case.

The key changes in April 2024, reflecting the government’s push towards making it easier for people to balance their professional and personal lives were:

Employees can request flexible working from day one. Previously, employees had to wait six months before making a request. This change could make it easier for workers to negotiate flexible arrangements when they first join a company.
Employers must respond more quickly to flexible working requests. Currently, employers have three months to respond to flexible working requests. The government wants to reduce this to two months, speeding up the process.A greater emphasis on discussing flexible working options. Employers will be encouraged to have more constructive conversations with employees about flexibility, which could potentially lead to more mutually beneficial arrangements.

ACAS Code of Practice

At the same time the statutory flexible working scheme was further supported by the introduction of a statutory Code of Practice.

The Acas Code addresses how an employee makes a request for flexible working, an employer's obligation to consult with an employee, how an employer should communicate its decision as well as the question of appeals. The aim of the Code is to provide employers and employees with a clear explanation of the law on the right to request flexible working, alongside good practice advice on handling requests in a reasonable manner.

Tribunals must take the Acas Code into account when dealing with flexible working complaints.

The new proposals

Changes proposed by the new Labour government build on this by:

Introducing a test of reasonableness where an employer refuses a statutory flexible working application.
Requiring that notification of the employer's decision will have to state the ground or grounds for refusing the application and explain why the employer considers that it is reasonable to refuse the application on that ground or those grounds.  This goes further than simply stating one or more of the potentially valid reasons for refusal listed in the Regulations:

1. The burden of additional costs
2. Inability to reorganise work among existing staff
3. Inability to recruit additional staff
4. Negative impact on quality
5. Negative impact on performance
6. Insufficiency of work during the proposed working times
7. Planned structural changes
8. Health and safety risks

Setting out steps in regulations that the employer must follow to comply with the requirement to consult with the employee before refusing a request for flexible working.

These reasons can be somewhat vague, leaving room for employers to deny requests with relative ease, particularly if they feel that offering flexible working could disrupt their operations. While employers will need to explain their reasons, they are not required to accept flexibility just because an employee wants it.  Some of the tabloid headlines on this suggesting that everyone would have the right to demand a four-day week, for example, were misleading in the extreme.

Risk of Discrimination Claims

If a flexible working request is denied, and the reason is found to be discriminatory—whether on the basis of a protected characteristic under the Equality Act 2010, most likely sex or disability — the employer could face legal repercussions. For example, if a woman is denied flexible working to collect her children from school, the employee may argue that the denial amounts to indirect sex discrimination because of the fact that women statistically bear a greater burden of childcare responsibilities than men and this can limit their ability to work certain hours (sometimes referred to as the "childcare disparity").

This means that both employers and employees need to carefully consider the reasons for approval or rejection of flexible working. Employers should ensure their decisions are fair, and employees should be prepared to challenge any refusals they feel are discriminatory.

The Benefits of Flexible Working: Why It’s Good for Business

While the new flexible working rules may not be as radical as anticipated, there are certain benefits to flexible working for both employees and employers.

Benefits for Employees

Better Work-Life Balance: Flexible working arrangements allow employees to better manage personal responsibilities, such as childcare or caring for elderly relatives. This balance can lead to reduced stress and higher job satisfaction.

Reduced Commuting: Remote or hybrid work options can reduce commuting times, saving money on transportation costs.

Increased Productivity: Many employees report higher productivity when working from home or in a more flexible environment. This could be due to fewer distractions and a more comfortable workspace.

Benefits for Employers

Attraction and Retention of Talent: Companies that offer flexible working options are more attractive to potential employees, especially those with caregiving responsibilities or those who value work-life balance. This can help companies attract top talent and reduce turnover.

Cost Savings: With employees working remotely, companies can save on office space, utilities, and other overhead costs. For example, a shift to hybrid work models could reduce the need for large office spaces.

Enhanced Employee Engagement: Employees who feel trusted with the flexibility to manage their workday are often more engaged and loyal to their employer. Flexible working shows that the company values its employees’ well-being, which can increase morale and foster a more productive, committed workforce.

Business Continuity: Flexible working, particularly remote work, can ensure that a business continues operating smoothly during unexpected disruptions, such as extreme weather events or public health crises– or a pandemic…!

This doesn’t mean, however, that the flexibility employees may seek is always going to be beneficial to the employer, or even operationally feasible.  Nonetheless, the balance is shifting further towards employers needing to properly consider all such requests, and be able to provide a reasonable and robust explanation in cases where such requests do not suit the business.

The Reality: Small Changes, Big Expectations

So, where does this leave us? The reality is that the forthcoming changes may not be as ground-breaking as many employees and unions hoped and we will not see the dramatic shift some were expecting.

Moreover, companies may still be cautious about implementing flexible working arrangements, especially in industries where face-to-face interaction is a priority. There’s also the question of whether employees will feel comfortable challenging refusals or if they will simply accept it.

That said, the shift towards greater flexibility is still positive overall. It opens the door for more constructive discussions between employers and employees and could be the beginning of a larger, more inclusive change in how work is structured in the UK.

We can help

For any questions or support with flexible working requests, whether you are an employer trying to navigate this frequently changing approach to modes of working or if you are an employee and you feel that you have been unreasonably denied flexible working, and whether you may have grounds for a discrimination complaint, contact us at Patch Law Specialist Employment Solicitors on 0117 290 0905 or at enquiries@patchlaw.co.uk