During our HR Informed: Coffee and Catch-up webinar on 16th April 2024, one of the topics discussed was the recent changes to the statutory flexible working procedure.

The benefits of flexible working for employers and employees are well versed and whilst the focus of our session was on the new changes introduced in April, as promised we have set out further detail in this article on the statutory flexible working regime generally.

New changes

The Employment Relations (Flexible Working) Act 2023 came into force on 6th April 2024 and makes the following key changes to the statutory flexible working procedure:

  1. Employees can make a request for flexible working as a day one right (there is no longer a need to have 26 weeks’ service).
  2. Employees can now make two statutory requests in any 12-month period (previously only one request could be made).
  3. Employers must now consult with employees before rejecting a request.
  4. Employees no longer have to explain what effect, if any, the change would have on the employer and how any such effect could be dealt with.
  5. Decisions (including any appeal) must now be made within two months, unless the parties have agreed to extend the time, (previously employers had 3 months to respond).

Acas Code of Practice

The Acas Code of Practice on flexible working has been updated to reflect the new changes. If a claim is pursued, the Tribunal is required to take the Code into account in determining the issue. Even if an employee makes an informal request (which is not covered by the statutory regime), it remains good practice for employers to follow the Code when dealing with a request. Full details of the Code can be found here. 

The statutory procedure

The procedure to deal with a request for flexible working is set out in the Code and summarised below.

  • A request must be in writing and state that it is a statutory request for flexible working. It must include:
  • the date of the request;
  • the change the employee is requesting ;
  • the date the employee would like the change to come into effect;
  • if and when the employee has made a previous request for flexible working to the employer.
  • Employers must handle every request in a ‘reasonable manner’ (a term not defined in the legislation or Code).
  • In handling a request employers must not discriminate against the employee in relation to any of the protected characteristics (e.g. disability) set out in the Equality Act 2010.
  • Employers must not reject a request without first consulting the employee. Consultation meetings should be held without unreasonable delay and a written record should be kept.
  • There is no statutory right to be accompanied to the meeting, however, allowing an employee to be accompanied is good practice and is recommended.
  • Employers must agree to a statutory request for flexible working unless there is a genuine business reason not to. A decision to reject can only be made on one or more of the prescribed business reasons set out in the Employment Rights Act 1996, namely:
  • the burden of additional costs;
  • an inability to reorganise work amongst existing staff;
  • an inability to recruit additional staff;
  • a detrimental impact on quality;
  • a detrimental impact on performance;
  • a detrimental effect on ability to meet customer demand;
  • insufficient work available for the periods the employee proposes to work;
  • planned structural changes to the employer’s business.
  • The employee must be informed of the decision (and any reason for rejection) in writing.
  • If the employer rejects the employee’s request, there is no statutory right of appeal, however, allowing an employee to appeal is good practice and is recommended.
  • An appeal meeting should be held without unreasonable delay, be dealt with impartially and a written record should be kept. Wherever possible, it should be handled by a manager who has not previously been involved in considering the request.
  • The employee should be informed of the appeal decision in writing within the prescribed time limit, unless the parties have agreed to an extension of time.

Tribunal claims

Breach of the statutory procedure 

An employee can only pursue a claim in the Tribunal against an employer for breach of the statutory flexible working regime in limited circumstances, namely where an employer has failed to:

  • deal with the request in a reasonable manner;
  • notify the employee of the decision within the prescribed time limit;
  • refused the request based on incorrect facts; or
  • refused the request on impermissible ground (i.e. not one of the prescribed business reasons set out above).

Where a tribunal finds a claim well founded, it must make a declaration to that effect and may:

  • order the employer to reconsider the request, and/or
  • award compensation as the Tribunal considers just and equitable up to a maximum of eight weeks’ pay (subject to the statutory cap on a week’s pay) (currently £700, as such a maximum award of £5,600).

Claims for breach of the statutory flexible working procedure are relatively low, undoubtedly due to the limited powers of the Tribunal and the costs of litigating.  However, a relatively recent Judgment was delivered by the Tribunal in December 2023 (set out below). Although only a first-instance decision, (and not binding on other Tribunals) it highlights the importance of following the statutory procedure and carefully assessing the facts before rejecting a request.

Miss Wilson v Financial Conduct Authority

The Claimant worked as a Senior Manager for the Respondent; she earned £140,000 per year and was responsible for 14 members of staff. The Claimant’s normal place of work was an office in London.  Following the Covid pandemic, the Respondent instructed staff to return to work in the office for 40% of their working time and 60% of their hours to be worked remotely. The Claimant submitted a flexible working application to work from home all the time, such being her personal preference (she was not willing to compromise and attend the office 20% or even 10% of the time). The Respondent rejected the Claimant’s request on grounds that it would have a detrimental impact on quality and performance, citing various factors where physical presence was required or which were viewed as being more beneficial where conducted in person.

The Claimant pursued a claim that the Respondent had breached the statutory procedure as they had failed to communicate the decision within the prescribed time limit and had rejected the request based on incorrect facts. The Claimant asserted that she had demonstrated that she could successfully work from home and that doing so did not have a detrimental impact on quality and performance.

Despite having a flexible working policy in place, the Manager was unaware that she should be progressing the request (highlighting the importance of training managers in the application of the policy). The Tribunal found that the Respondent breached the obligation to communicate its decision within the statutory time limit and awarded 1 weeks’ pay in compensation (£643 based on the applicable statutory cap).

The Tribunal did not uphold the Claimant’s claim that the decision was based on incorrect facts. The Tribunal concluded that the Respondent had properly and carefully assessed and considered the issues and whilst many tasks could be completed remotely, the Respondent was entitled to conclude that certain duties such as attendance at in-person events were required to be performed face to face and doing so remotely would have a detrimental impact on performance and quality.

The Judge also noted that ‘this is a case which raises a key issue in the modern workplace and which will no doubt be the subject of continued litigation’. ‘The need for staff to provide a physical presence at an office location is a debate which many companies are now engaged in and which the solutions arrived at will no doubt differ considerably from employer to employer, there will not be one solution which will work for all companies or even for all roles within a company. There is at the heart of many of these considerations a ‘qualitive debate’ as to whether face to face or virtual contact is better. Ultimately it may be the case that each situation requires its own consideration.’

Automatic unfair dismissal and detriment claims

An employee can also pursue a claim where they have been subject to a detriment or have been dismissed because they made or intend to make a request for flexible working or have issued or intend to issue legal proceedings in relation to their right to request flexible working.

There is no qualifying period of service required to pursue such claims and compensation is governed by the usual principles in cases of automatic unfair dismissal and detriment (injury to feelings being available for detriment claims).

Constructive unfair dismissal and discrimination claims 

Despite the Tribunal’s powers being relatively limited when it comes to the statutory flexible working regime, a real concern for employers relate to claims of constructive unfair dismissal and/or discrimination which may arise from rejecting a request for flexible working. In discrimination claims, there is no cap on compensation, and it is therefore very important that requests are carefully considered and any decision to reject a request is based on sound business reasons, capable of scrutiny by the Tribunal. It is also important that an employer can demonstrate the decision is a proportionate means of achieving a legitimate aim.

Action points for employers 

  1. Its’ good practice to have a policy on flexible working.
  1. If you already have a flexible working policy this should be updated to reflect the recent changes.
  1. Training managers in dealing with flexible working requests and the tricky issues that can crop up can help mitigate the risks of costly litigation.

If you require assistance in drafting or updating your policies or training please get in touch with a member of the team.

We look forward to seeing some of you at our next coffee and catch-up webinar on 11 July 2024, in the meantime, please feel free to get in touch if you have any questions.

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This is only intended to be a summary and not specific legal advice. If you would like further information or advice, please do contact a member of our team.

Contact Us

If you have any questions on employment law, please contact a member of the team:

Selene Holden (seleneholden@greene-greene.com ~ 01284 717436)
Greg Jones (gregjones@greene-greene.com ~ 01284 717446)
Angharad Ellis Owen (aeo@greene-greene.com ~ 01284 717453)
Katie Harris-Wright (katieharris-wright@greene-greene.com ~ 01284 717442)

For more information on the services offered by Greene & Greene Solicitors please visit www.greene-greene.com and follow on Twitter @GreeneGreeneLaw

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