Flexible Working

When we refer to ‘flexible working’ we are describing any working arrangement that meets the needs of both the employee and the employer regarding when, where and how an employee works. Examples might include hybrid work, working part time or compressed hours, or job shares. Flexible working can help improve staff retention and recruitment and create more diverse and inclusive workplaces.

Often, employees and employers reach mutually beneficial arrangements on an informal basis. However, there are specific rules relating to formal flexible working requests.

Current position on formal flexible working requests

Under existing legislation, employees have the right to request a flexible working arrangement from their first day in a job and they have the right to make a request up to two times in every twelve months.

Employers may choose to accept or reject a flexible working request. However, if the employee is eligible to make a request and they comply with the procedure for doing so, the decision to refuse a request may be on one or more of the following grounds:

• The burden of additional costs
• Detrimental effect on the employer’s 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
• Planned structural changes

Employers are not legally obliged to explain their decision and the decision cannot be challenged in the Employment Tribunal on the basis that the employee considers the decision itself to be unreasonable.

In practice, this means that there may be situations where an employer could reasonably implement a flexible working arrangement, for example hybrid working, but chooses not to, citing one or more of the business reasons, such as ‘detrimental impact on performance’ with little explanation as to how this applies.

What’s changing?

The Employment Rights Act (‘ERA’) proposes to make changes to the way in which flexible working requests are rejected by employers.

Following changes which are expected to take effect in 2027, they will only be able to do so where it is reasonable for one or more of the existing business reasons. There will be a specified process that employers must follow when consulting with the employee and, if they nonetheless proceed to reject the request, they must explain why their decision is reasonable.

What does this mean?

The proposed changes do not quite meet the Government’s pledge to make flexible working the ‘default’ However, with a new requirement of ‘reasonableness’, the workforce may experience a greater number of flexible working arrangements being implemented in practice.

The proposed changes mean that employers will have to be more careful when considering whether or not they could accommodate an employee’s flexible working request. More time will need to be spent considering the extent to which a particular business need is engaged and whether, realistically, the requested changes could be supported.

Employers will need to review their flexible working policies and practices, as well as ensure those making decisions are aware of the changes.

If you would like to talk to someone about your flexible working policies and/or practices, please contact a member of the Employment team.

To find out what other aspects of employment law are affected by the Employment Rights Act, read our blog “The Employment Rights Act – When to expect change”.

We publish blogs and social media posts to give a general overview of legal and commercial issues, relevant at the time of publication, which we hope you will find interesting. Please note that legal rules often change depending on the specific facts of a situation. The law also changes over time following changes in legislation or new court cases. We do not actively update our blogs or posts once they are published to reflect changes in the law.