Changes are coming to the rules on flexible working requests - Chris Phillips

On July 20 the Employment Relations (Flexible Working) Act received Royal Assent. The legislation introduces important changes to the current flexible working regime which is no longer seen as fit for purpose after the increased uptake of working from home following the pandemic.

Chief among the key changes is that the Act removes the requirement for employees to put forward suggestions that mitigate the impact of their request; allows employees to make two flexible working requests in any 12-month period; reduces the amount of time in which employers must respond from three months to two; and forces employers to consult with employees on their requests before declining them.

Furthermore, if all goes as planned, secondary legislation will deliver a Day One right to request flexible working. Currently, employees need six months’ service before making a request.

Given the extent to which many employers have already evolved their own working practices since lockdown, the new changes may not make a huge difference, with many staff already working to a new arrangement that suits them and is consistent with the requirements of the business.

Chris Phillips is Partner, Thorntons, and accredited employment law specialist

However, for those who sought to bring teams back into offices and other workplaces for a substantial part of the working week (and had every right to do so given lockdown restrictions were only ever temporary), the changes could prompt a flurry of new applications to work differently. This may be the case particularly for staff who were resistant to return but perhaps not eligible at the time to make a flexible working request or disinclined to do so because of the more cumbersome process that had to be followed.

As well as becoming a more streamlined process to apply, it also becomes tougher for an employer to simply turn down a request. They will need to engage with the employee more actively and try to overcome any perceived obstacles to the change proposed. In some ways this represents a real shift in the burden of coming up with a workable solution, away from the employee and on to the employer although one would hope employees will not become entirely passive in that aspect of the process.

To be clear, the original reasons an employer can rely on to turn down an application (detrimental impact on performance, customer service, quality, additional burden of costs and so on) will remain unchanged. But there will need to be a more active dialogue around this between the parties, before a final decision is made.

One other change that employers must now consider is updating their policies on flexible working once the legislation is finalised, so the new regime is properly reflected. It would also make sense for line managers and HR colleagues to organise some training around the changes so they are fully prepared for what may come.

Going forward, we are likely to see more requests to work flexibly once the new law comes fully into force in the next year or so. Many employers are already ahead of the curve now and make clear in job advertisements that while a role is offered on a particular basis, flexibility is welcomed. So even in the case of new starts, all employers will need to prepare themselves for greater flexibility being pretty much the norm.

​Chris Phillips is Partner, Thorntons, and accredited employment law specialist