Fostering Flexibility: A Guide To Handling Flexible Working Requests

February 16, 2024

The original Flexible Working Regulations that were created in 2014 are finally being amended after 10 whole years! The changes come into effect from 6 April 2024, so it’s time to start thinking about reviewing your current policies; up-skilling managers, giving clarity across the business, and embracing a shift in flexible workplace dynamics.

In this blog we’ll explore what the amendments to the regulations say, what an employee request should look like, how a business should respond to an application, and potentially handling appeals and tribunal claims.

What does the Flexible Working (Amendment) Regulations mean?

Flexible working refers to working patterns or hours (incl. part-time, flexitime, term time, compressed hours and adjusted working hours) and location (incl. working from home).

The existing (pre-April 2024) requirement of26 weeks service before being eligible to make a flexible working request has been banished. This now means that employees have a day one right to make a flexible working request.

The number of requests an employee can make in a 12-month period has also extended from one to two.

Employers now have an extended duty to consult with employees on their flexible working request before rejecting it.The time employers have to respond to a requests has also been reduced from three months to two months.

Flexible working can have great benefits fora business including increasing staff motivation, reducing absences, attracting new talent and promoting a better work-life balance – to name a few. However, these changes can be quite significant for a business to accommodate and overcome –so what do you need to be thinking about?

Creating a flexible working policy

If you don’t already have one, it’s best to create a policy which provides clarity for everyone in the business on the process that should be followed when making a request. Note that this is only available to employees (both part-time and fixed-term) but not contractors, consultants or agency workers – that might affect which policies you’re updating!

Start by clarifying the eligibility criteria and the scope of the request (i.e. what they can request – noting that it could be a combination of requests e.g.compressing hours and working some of those hours from home). It might also be helpful to lay out some examples of why a request may be refused. There are regulations for this. Some of the reasons include (but are not limited to): detrimental impact on performance, inability to recruit additional staff and the burden of additional costs. But the real substance of the policy will be the process that an employee needs to follow to submit a request. You should think about what you want an application to look like (provide a template for this if you can),who should receive the request and in what format etc.

The next part of your policy should focus on the business response to applications. Will employees be required to attend a meeting to discuss the request prior to a decision consultation being held? How quickly can employees expect to hear back the business? Make sure any timelines run in conjunction with the updated regulations – though you can make a provision to formally agree an extension of time, if required. It’s important that this process is consistent, so you’ll want to make sure it works in practice for all employees.

Hopefully the flexible working request will be reasonable and achievable for your business – however, this won’t always be the case. The latter part of your policy should focus on the rejection and potential appeal circumstances. Remember, as an employer you have an obligation to consult with employees prior to refusing a request so make provisions for this. Your refusal will need to be detailed so it’s important you’re comfortable documenting and justifying any refusal. Employees will now have the right to make a second request within a 12-month period so it’s advisable to inform them why their original request was refused so they can look to amend that in their next request.

All being well, even if a request is refused, hopefully your transparency around the decision will be understood by your employee. However, it’s not always sunshine and roses in the world of people management, so an employee may appeal your decision. You could use a similar process to your existing grievance policy. Please note, that it’s best practice, where possible, for the person responding to the appeal to be different to the person who refused the request. If the employee is again unsuccessful at an appeal, they could technically make a complaint to the employment tribunal (ET). There are limited grounds for this, but it is still possible if an employer has failed to follow the correct procedure, the reason given for refusal didn’t comply with the regulations and/or the employer’s decision was based on inaccurate information.

Managing someone who works flexibly

When a flexible working request is agreed, this symbolises a permanent change to the employee’s employment contract and role. For both employee and employer, you’ll want everything to be business as usual (as far as possible). You might need to think about changing your communication method (including times for those working different hours). What will you do to keep everyone updated? Do you require staff handovers for those sharing responsibilities? Would it be best practice to make a rota visible to all staff?

What about working from abroad?

During the pandemic, requests to work remotely from abroad skyrocketed. But this request is more than just making sure an employee has the equipment needed to work wherever they want to in the world. Circumstances will vary on a case-by-case basis, depending on the location. It’s important for employers to consider an employee ‘right to work’ position, insurance coverage, data protection compliance, tax and social security obligations and, more generally, the feasibility of monitoring performance etc for an employee based abroad.

We support clients such as Drayton Partners,Energy Aspects, G2 and HubBox with a variety of HR and Employment Law matters.If you need help preparing your flexible working request policy or support with responding to a flexible working request, you can get in touch with the team here.

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