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The Covid-19 pandemic overhauled expectations on office working. Hybrid or remote working became standard practice. However, numerous companies are now making office attendance compulsory. In September, Amazon announced plans to mandate its staff to attend the office five days a week from January 2025, and in November, Asda declared that its head office staff would be required to attend the office at least three days a week, also from January 2025. The requirement for employees to return to the office is not always a popular decision with employees, who may prefer hybrid or remote working as they provide flexibility, and reduce the cost and time spent on commuting to the office. This means that there can often be conflicting views between employers and employees over whether remote working, hybrid working, or office working is best – a debate that we shall not get into now!
In its background notes to the King’s Speech 2024[1], the Labour government said it would make flexible working the “default” from day-one. However, this does not appear to be reflected in the flexible working provisions of the Employment Rights Bill (the “Bill“), which was published in early October. Whilst the changes announced in the Bill do bolster the recent changes to flexible working legislation, they fall short of making flexible working the ‘default’.
Current law on flexible working
Since April 2024, the right to request flexible working has been a day 1 right. This means that regardless of an employee’s length of service with their employer, they have the right to put in a request for a flexible working arrangement. The employee may make two statutory flexible working requests within any 12-month period. Noting, of course, that this is a right to request a flexible working arrangement, rather than the right to have a flexible working request granted.
Upon receipt of a flexible working request, employers must deal with the request in a reasonable manner. The ACAS Code of Practice sets out what is regarded as dealing with a request in a “reasonable manner”. In particular, unless the employer agrees to the request in full, a consultation with the employee must take place, and if the request is rejected, the employer must explain to the employee the business reason(s) for the refusal (as set out below), and allow the employee to appeal the decision. The employer has two months (from the date on which the employee’s request is made) to provide the employee with the decision on the flexible working request, and on any appeals. This period can be extended if both the employer and the employee agree. An employer can only reject a flexible working request for one or more of the following eight business reasons:
- the burden of additional costs;
- detrimental effect on the ability to meet customer demand;
- inability to reorganise work among existing staff;
- inability to recruit additional staff;
- detrimental impact on quality;
- detrimental impact on performance;
- insufficiency of work during the periods the employee proposes to work; and/or
- planned structural changes.
Changes to flexible working provisions in the Bill and when they are likely to come into force
Under the Bill, if refusing a flexible working request, then an employer will still need to rely on one or more of the above business reasons for refusal. However, the employer will need to go further and explain why it considers it “reasonable” to refuse the flexible working request based on the reason(s). This essentially means that the employer will need to justify why it is using that reason to deny the flexible working request. This is likely to lead to arguments about the reasonableness of any refusal and may result in an increase in tribunal claims.
Currently, an employer must not refuse a flexible working request unless the employee has been consulted about it. The Bill builds on this by specifying that regulations may be introduced which set out specific steps that employers must comply with in order to satisfy the consultation requirement. While we do not yet know the substance of the regulations, since the ACAS Code of Practice (set out above) already includes provisions regarding consultation, it is likely that the new regulations will include similar actions to those set out in the ACAS Code of Practice. The Government’s ‘Next steps’ document confirms that a consultation will take place to develop the details on the approach to flexible working, so more detail should be forthcoming as part of this process.
At the time of writing, the Bill is only at the Committee Stage in the House of Commons. There is therefore a considerable process for the Bill to go through in Parliament before it becomes an Act of Parliament, and regulations will also need to be consulted on, and enacted. For these reasons, it is likely that the flexible working provisions in the Bill will not come into force until 2026.
Key points to consider and next steps
The flexible working provisions in the Bill are a right for employees to request flexible working, rather than flexible working being the “default”. Therefore, the impact that the changes will have on employers is unlikely to be as substantial as previously believed.
The Government had also previously indicated that the flexible working legislation would be extended to workers as well as employees. However, this has not yet materialised, and the flexible working provisions in the Bill only apply to employees.
In addition to this, the penalties for non-compliance with the flexible working legislation will remain unchanged. This means that, if the Employment Tribunal finds that the flexible working legislation has been breached, the compensation payable is still capped at a maximum of eight weeks’ pay (currently up to a maximum of £5,600).
Ultimately, the Bill is likely to make it more difficult for employers to refuse flexible working requests from employees, as there is the added requirement of “reasonableness”. Employers will need to make sure that they are justifying which one (or more) of the eight reasons as set out above that it is relying on to refuse the flexible working request.
In light of the recent changes to the flexible working legislation, and in anticipation of the amendments contained in the Bill, employers may wish to consider the following:
- Take a positive and collaborative approach to flexible working by dealing with requests transparently and engaging in meaningful dialogue with the employee. If a request cannot be granted in full, try and overcome obstacles and consider alternatives and trial periods.
- Review policies to ensure that they include: (i) consultation with employees on flexible working requests (including if the request will be granted, to discuss the logistics of the flexible working arrangement); and (ii) best practice. If needed, employers should update policies to reflect (i) and (ii) and carry out training to managers on the updated policies.
- If an employer is not able to accommodate a request, start obtaining evidence for the justification of any refusal to use as evidence (perhaps contained in the outcome letter) that the refusal was reasonable. For example, if you are refusing the request based on “the burden of additional costs”, be prepared to justify what these costs would be and why it would not be reasonable for you to take these costs on to accommodate the flexible working request.
- Discuss flexibility requirements during the recruitment phase. By discussing this early on, rather than waiting until ‘day 1’ of employment, the employer can understand the employee’s flexibility requirements, and whether these are feasible with the role.
With there likely to be an increase in the number of flexible working requests due to more employers requiring mandatory office attendance, along with the recent and the proposed changes to the legislation on flexible working requests, HR professionals and in-house legal teams have a lot to consider in this area. To discuss any of the points raised in this article, including any queries on the Employment Rights Bill, please do contact Robert Forsyth, Hannah Meehan or another member of the Employment team.
[1]https://assets.publishing.service.gov.uk/media/6697f5c10808eaf43b50d18e/The_King_s_Speech_2024_background_briefing_notes.pdf
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