What do the changes to the right to request flexible working mean for your business?

At present, employers are only legally required to consider flexible working requests from employees after 26 weeks of employment.

Although working from home has captured much of the public and media attention since the pandemic, flexible working can take many other forms, including part-time and term-time-only working, compressed hours, flexitime, and job-sharing.

It’s important to note that this change does not constitute a legal right to flexible working from day one of employment, but a right to submit a request on day one.

The government has not yet set a date for introducing the change, but as it plans to use secondary legislation to do so the process is likely to be fairly swift.

What is and isn’t changing?

In addition to being able to submit a request for flexible working on the first day of employment, employees will be able to submit two requests per year (up from one at present).

Employers will have two months to respond to the request (down from three at present).

Employers will also need to evidence that they have considered alternative options when rejecting a flexible working request. For example, if they cannot change an employee’s working hours on all days, they might instead consider changing them for certain days.

The government is also removing the requirement for the employee to make suggestions as to how their flexible working request is dealt with by their employer.

However, the reasons that employers can give for rejecting a request will remain the same:

• planned structural changes

• the burden of additional costs

• quality or standards will suffer

• being unable to recruit additional staff

• performance will suffer

• won’t be able to reorganise work among existing staff

• will struggle to meet customer demand

• lack of work during the periods the employee proposes to work.

Having an appeals process in place will still not be a legal requirement, but it can help to demonstrate that employers are processing requests in a ‘reasonable manner’.

The government has committed to publishing guidance for employers on how to make and administer temporary requests for flexible working.

How you can get ahead of the curve

These changes will not require employers to advertise jobs as having the potential for flexible working, but if you are able to offer flexible working then detailing the flexible working options available in a job advertisement can both increase the appeal of the job and manage expectations before an employee takes up a position.

Informally discussing flexible working arrangements before someone starts working with you can both decrease the chance that an employee will renege on an employment offer and reduce the chance that they will submit a formal request, with the accompanying bureaucracy that entails.