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5 top tips for dealing with flexible working requests

The Employment Relations (Flexible Working) Act 2023 received Royal Assent on 20 July 2023 and has now become law. The Government’s key proposal was that the right to request flexible working would apply from the first day of employment, not after 26 weeks in the job. The Government confirmed that the right to request flexible working will become a day one right. Please see our blog for further details relating to the changes to flexible working requests.

The pandemic has shown that working from home is possible for many employees and the consultation covered all flexible working, including requesting a change in working hours (e.g. part time, flexi-time or compressed hours) and job shares.

Enabling flexible working has been shown to provide significant benefits to employers, reducing absenteeism and stress at work and increasing job satisfaction and in turn staff retention.

Whether dealing with flexible working requests has now become second nature in your organisation, or you are considering your first formal request, it is always useful to refresh yourself as to the process. We’ve set out our top 5 tips for dealing with flexible working requests below.

1. Always deal with requests promptly and in line with the required time limits

Employers must deal with requests for flexible working in a reasonable manner.

An employer must have notified the employee of the decision, including the decision on any appeal within two months of receiving the requests, unless the employee otherwise agrees to extend the time.

Whilst two months seems like a long period, this can quickly go by, particularly if the employee is absent from the workplace, for example on maternity leave and it takes time to arrange a convenient time to meet with the employee. Acknowledge flexible working requests promptly and aim to arrange an initial meeting with the employee as soon as possible, to allow plenty of time for you to subsequently consider the request and propose and discuss any alternatives with the employee.

The ACAS Code of Practice on flexible working requests provides helpful guidance for employers on best practice. This was updated in April 2024 and replaces the previous version in place.

2. Carefully consider the grounds when refusing requests

The right to request flexible working is a right to request, not to be granted flexible working arrangements. Requests can be refused on one of 8 business grounds, for example the burden of additional costs, inability to recruit additional staff or re-organise work amongst existing staff. The consultation asked if these eight specified grounds all remain valid and reasonable and the Government has concluded that they will stay the same.

It is not enough however to point to a ground without giving any further rationale. Although the right to request flexible working is limited, employees may also be protected on other grounds, for example a refusal to allow a request made by a woman due to childcare commitments may be indirectly discriminatory on the grounds of sex.

Requests should not be refused on the basis of assumptions that part-time working will not work for the role, or that it would not be possible to recruit to cover remaining hours. Genuine consideration should be given as to whether any initial barriers can be overcome.

3. Consider alternatives to the employee’s proposal

There is now a new duty on the employer to discuss alternatives to the request. This means that if the employer intends to reject the request, it must discuss whether there are alternative forms of flexible working available. The procedure for requesting flexible working has also been simplified by removing the requirement for employees to set out how the effects of their flexible working request might impact upon the employer.

For example, if the employee wishes to work 3 days a week but you can only accommodate working 4 days a week, propose this option as an alternative for the employee. This helps to increase the chance that you can reach a solution that works for both parties and also assists to demonstrate that you have considered all options.

4. Considering using a trial period

In a similar vein, if you are unsure whether the employee’s proposal will work in practice, consider offering a trial period. A trial period of any duration can be agreed with the employee and you can then use this time to assess whether the new pattern will work in practice before reaching a final decision. If the pattern does not work, the trial period will provide sufficient evidence of this fact, that you can then rely on in justifying your decision to refuse the request.

5. Remember to document the changes

If you have agreed a flexible request, remember to document this. Once a flexible working request is agreed it is a permanent change to the employee’s contract. You will need to issue either a new contract of employment or a contract variation letter to the employee confirming the change agreed and any knock on changes, for example a consequential reduction in holiday entitlement where hours are reduced.

For further information in relation to managing flexible working requests and employer’s obligations please contact a member of the Employment team.

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As such, our blogs and posts are not intended to advise you on the law and must not be relied upon as legal advice. If you require advice on a particular issue then please contact us and we will be pleased to help.