Wed 11 Jan 2023

Flexible Working: A Day One Right

Flexible Working - A Day One Right


Since June 2014, employees with at least 26 weeks' continuous employment have had the statutory right to request flexible working. However, proposed changes to the law means that this could be something they can request on their first day of employment.

The Right to Request Flexible Working

Currently the right to make a flexible working request is only available once an employee has 26 weeks’ continuous employment with an employer. They must make their request in writing and the employer has three months to consider the request and notify the employee of the outcome. An employer can only refuse the request for the following reasons:

  1. The burden of additional costs
  2. An inability to reorganise work amongst existing staff
  3. An inability to recruit additional staff
  4. A detrimental impact on quality
  5. A detrimental impact on performance
  6. Detrimental effect on ability to meet customer demand
  7. Insufficient work for the periods the employee proposes to work
  8. Planned structural changes to the business

Complaints to a Tribunal

If an employer refuses an employee’s request for flexible working, the employee can make a complaint to a tribunal if they believe the employer failed to deal with their application in a reasonable manner or made the decision using incorrect facts. A complaint can also be raised if the employer did not notify the employee of their decision within the 3-month period or if a refusal is not based on one of the eight statutory grounds outlined above. If an employer were to dismiss an employee for making a flexible working request, this dismissal would be automatically unfair.  

New Developments

The Government confirmed it is supporting the Employment Relations (Flexible Working) Private Members' Bill which will amend sections 80F and 80G of the Employment Rights Act 1996. These new provisions, if passed, will make the right to request flexible working a Day One right. The Bill increases the number of requests an employee can make from one to two within a 12-month period and the response time for employers will reduce from three months to two. A new duty will be introduced for employers which imposes the requirement to discuss alternatives to the request for flexible working with the employee if the employer intends to reject the request. The application process for employees will also be simplified with proposed removal of the requirement to detail how the request might impact the employer. The Bill received a second reading at the House of Commons on 28 October 2022 and is currently at report stage, following which it will undergo a third reading and then move to the House of Lords. Stay tuned to find out how this progresses.

For more information or for specific advice on managing a flexible working request or introducing a flexible working policy, please contact our specialist employment law team. 

This article was co-written by Carla Mitchell, Trainee Solicitor. 

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