There continues to be significant media interest in organisations requiring employees to get back to the office, for most of their working week. For example, leaked memos suggest that one global tech business has mandated that unless employees return to the office at least three days a week they will be considered ‘remote’ workers and will be excluded from promotion and career advancement opportunities. As the remote-working habits of the pandemic become an increasingly distant memory, we are continuing to see lots of businesses reflect on how, where and when their employees should work. Against this background, it is particularly important for employers to get to grips with new rules on flexible working requests.
In this article, we consider the new statutory flexible working framework which came into force on 6 April 2024, how employers can appropriately deal with statutory flexible working requests and some of the key risk areas.
Employees in England and Wales have the statutory right to request flexible working. Flexible working refers to any work schedule which deviates from the ‘standard’ Monday – Friday, 9-5pm shift pattern, which has been increasingly seen as somewhat inconvenient and rigid post-pandemic. This could include changes to working hours, working times or place of work. It is important to remember there is only a right to request flexible working, but employers can only refuse a request for one of eight specified business-related reasons.
In the biggest shift to the flexible working regime since 2014, the Employment Relations (Flexible Working) Act 2023 has introduced a number of changes to the regime, effective since 6 April 2024:
ACAS has also issued an updated Code of Practice on requests for flexible working (the Code). Whilst it does not have statutory force, Employment Tribunals will take the Code into account when considering relevant cases and so employers should generally follow the Code. The key points in the new Code include:
- allowing employees to be accompanied at meetings to discuss requests;
- after agreeing to a request, offering the employee an opportunity for a discussion to clarify any further information to help implement the arrangement;
- providing additional information which is reasonable to help explain a decision to reject; and
- appointing a different manager to handle any appeal, wherever possible.
In addition to the Code, ACAS has also issued non-mandatory guidance on assessing formal statutory flexible working request (the Guide)[1].
It is still the case that:
- The steps the employer took to investigate whether it could accept the request.
- Any practical aspects of the job that prevented the employer accepting the request.
- Any alternative options the employer considered.
- Any data the employer used to help it make its decision (for example, staffing levels or recruitment costs).
- Any health and safety considerations related to the request.
With the above in mind, there are a number of key practical issues which employers need to consider when handling flexible working requests:
We have recently advised clients who have received multiple flexible working requests at the same time, typically in response to a change of policy regarding return to the office. In this situation, the Guide recommends the following steps to ensure requests are handled fairly:
It also suggests that where an employer receives multiple requests for a similar change and is unable to accept all the requests, it should talk to each employee about alternative options and try to find a compromise. Where it is not possible to reach a solution that works for everyone, the employer should consider each request separately, in the order they were received. The Guide gives the following examples:
As explored further below, it will always be important to take account of any particular features of a flexible working request, such as childcare / other caring commitments or adjustments to accommodate a disability. In practice, employers may end up prioritising requests from employees who are more ‘high risk’ because they have additional statutory protection – for example, employees returning from maternity leave.
We often see employers saying they cannot accept a request because it will “set a precedent”. This is not a valid reason to reject a request and should not be relied upon. Further, any blanket policy against flexible working requests will almost certainly lead to unfair and discriminatory decisions.
Employees can only be awarded a maximum of eight weeks’ (capped) pay for an employer’s breach of the statutory flexible working regime. Discrimination claims carry a much greater potential exposure for an employer when turning down a flexible working request. It is not unusual for claims to fail under the flexible working regime but succeed on the basis that the employer’s handling of a flexible working request is in some way discriminatory.
Some common areas of discrimination risk in the context of rejecting a flexible working request include:
As is often the case, the trends we are seeing in practice with flexible working requests have filtered through to Tribunal claims. To give a couple of recent examples:
1. Wilson v Financial Conduct Authority: 2302739/2023
This case was one of the first Tribunal cases to consider hybrid working policies since the Covid pandemic. This was a rare case where there was no discrimination aspect to the claim. Miss Wilson was a senior manager at the FCA and had been working remotely since the start of the pandemic in early 2020. The FCA implemented a policy requiring staff to work in the office for 40% of their working patterns – a common approach amongst employer’s post pandemic. Miss Wilson requested a formal permanent change to her contract to work entirely remotely. The FCA rejected the request on the basis that full-time remote work may have a detrimental impact on her performance and quality of work. In particular, the FCA highlighted the importance of face-to-face interactions for training, supervision, department needs and team spirit, given Miss Wilson’s seniority and managerial position. Miss Wilson referenced that she had been an exceptionally high performer during the period she had worked entirely from home. She also referred to the FCA’s excellent technology enabling remote working and that the FCA’s flexible remote working policy allowed staff to choose what days they attend the office, meaning there was a limited likelihood that she would be seeing the same staff in person regularly in any case. The Tribunal found in favour of the FCA. They had particular regard to fact that the FCA had genuinely considered the merits of the request and provided specific reasons why it may have had a detrimental impact, rather than just applying its policy in a blanket way.
2. Johnson v Bronzeshield Lifting Ltd: 2303313/2022
Ms Johnson’s claim in respect of the rejection of her flexible working request was coupled with a claim for direct sex and disability discrimination, as she argued that her employer failed to take account of the fact, she was going through the menopause in determining her flexible working request. She had asked to reduce her working days from five days to three full days and one-half day, taking Fridays off, due to going through the menopause and needing to care for elderly parents. She said that her colleague who worked part time could cover the days she would not be in the office. She needed Fridays off specifically because her son and partner could not help with her parents on Fridays. Her application was refused on the basis that Friday could be the busiest day for the business, it was not fair on existing staff to cover her work, and it would not be possible to recruit someone new for one day per week. The Tribunal accepted that the business decision maker had little direct knowledge of Ms Johnson’s day to day responsibilities and took no account of the cited link between Ms Johnson’s menopause and her request. Interestingly, the Tribunal found that the business would have been interested to find out what the link was between the condition and the request if she had a different condition, such as cancer – saying that, effectively, the decision maker did not take the employee’s menopause seriously. This failure amounted to direct disability discrimination on the basis that she was treated less favourably because of her disability. However, the Tribunal found that there was reasonable and proper cause for the refusal of the flexible working request itself, and so the refusal of the request was not disability discrimination. It is worth noting that Ms Johnson was also successful in her constructive unfair dismissal claim for the same reason, i.e., that the business failed to take account of her going through the menopause in rejecting her flexible working request. The Tribunal emphasised that the way in which flexible working applications are dealt with is important, and that employers need to make real effort to understand how disabilities / medical conditions affect individuals and why they are asking for a change to their working patterns.
The new statutory regime on flexible working will no doubt lead to an increase in the number of formal requests received by employers, especially those who are looking to change their policies on hybrid working to shift the balance back towards greater office attendance. HR and management teams should ensure that they are familiar with the new rules and fully prepared to handle requests made under them.
If your organisation needs any support in handling flexible working requests, or reviewing any related policies or practices, please do get in touch.
[1] The full Guide can be downloaded as a PDF document from this link.
[2] For example, in Thompson v Scancrown Ltd T/a Manors: 2205199/2019, a female estate agent won a £185,000 payout after her employer refused to allow her to work four days a week and leave the office one hour early to collect her child from nursery following her return from maternity leave.