Employment Rights Bill essentials: Flexible working requests

Author: Robert Shore

In the second part of a new series delving into the details of the Employment Rights Bill, we look at the proposed changes to the right to make a flexible working request.

What is changing?

Employees currently have a day-one right to make a statutory request for flexible working, ie to request to alter the hours that they are required to work; the times that they are required to work; and/or where they are required to work.

Employers have an existing duty to deal with requests in a reasonable manner. They may refuse a request if they have a valid business reason for doing so but must consult the employee - eg invite them to a meeting to discuss it - before rejecting the request.

There are currently eight valid business reasons for refusing a flexible working request. They are:

• the burden of additional costs;
• a detrimental effect on ability to meet customer demand;
• an inability to reorganise work among existing staff;
• an inability to recruit additional staff to do the work;
• a detrimental impact on quality;
• a detrimental impact on performance;
• insufficiency of work during the periods the employee proposes to work; and
• planned structural changes.

While in Next steps to make work pay the Government says that it will make flexible working the default, the changes in the Employment Rights Bill actually keep the option for employers to refuse a request for flexible working on the existing grounds listed above, which are being retained. However, if employers wish to reject a request:

• the refusal will need to be reasonable on the grounds of one or more of the existing eight business reasons; and
• employers will need to explain to the employee why the refusal is reasonable. 

These changes will create a new "reasonableness" test, so that in future employment tribunals will be able to consider the reasonableness of an employer's decision to accept or reject a request. Currently, if an employee takes a claim on flexible working to a tribunal, the claim may succeed only if the employer's decision was based on incorrect facts or if the manner the employer dealt with the application was not reasonable.

The Employment Rights Bill also gives the Government the option to introduce regulations to expand on the existing requirement for employers to consult employees about their flexible working application.  When consulting with an employee, employers would need to follow a specified process, which would be set out in the regulations.

Practical implications for employers

• The changes may lead to more flexible working requests and an increase in flexible working, which the Government is seeking to establish as the default where not unreasonable.
• HR will need to train line managers in the new requirements - particularly the need for a refusal to be reasonable - and will need to review how their organisation handles flexible working requests.
• There may be more employment tribunal claims, where there will be greater scope for scrutiny of an employer's grounds in dealing with a request. Employers will need to consider carefully the "reasonableness" of their response to a request.

What happens next?

The Government has said it will publish a code of practice to assist employers to consider requests and meet their obligations under the new reasonableness test.

Regulations are expected to set out the process an employer needs to follow when consulting with an employee about their request.

The Employment Rights Bill is unlikely to receive Royal Assent before summer 2025 and the Government has said that most of the changes will not take effect until 2026.