The Employment Rights Bill and the right to request flexible working

The Employment Rights Bill ('the Bill') introduces additional obligations on employers when dealing with flexible working requests. While the Bill does not go as far as making flexible working 'the default', as had been anticipated, there are still some important changes which employers will need to incorporate into their flexible working policies and procedures.

Current position

Since 6 April 2024, employees have had a day one right to make a request for flexible working. That request can be refused by an employer where one or more of the statutory grounds in the Employment Rights Act 1996 applies. A decision to refuse a request does not require the employer to demonstrate why their refusal is reasonable - as the law stands the only requirement is to handle the request in a 'reasonable manner'.

The Bill

In its Plan to Make Work Pay ("the Plan"), the government indicated that it would make flexible working the default from day one of employment, except where it is 'not reasonably feasible'. However, the Bill does not go this far – it remains a right to request flexible working which will be subject to a new test of reasonableness when refusing requests.

Test of reasonableness

Under the Bill, employers will only be able to refuse an application for flexible working where:

• They believe that the application should be refused on one or more of the eight statutory business reasons; and
• It is reasonable for them to refuse the application on that ground(s).

Where an employer refuses an application, they must notify the employee by:

• Stating the ground(s) for refusing the application; and
• Explaining why they believe that it is reasonable to refuse the application on that ground(s).

It remains to be seen how this new test of reasonableness will work in practice and be interpreted by employment tribunals - hopefully this will be clarified via future consultation and regulations. 

Consultation

Under the existing rules, an employer must not refuse a statutory request for flexible working unless they have 'consulted' the employee about it. The Bill provides that regulations may set out the particular steps to be taken in order to comply with this requirement to consult. Such steps could include those currently listed as good practice in the Acas Code of Practice on Requests for Flexible Working such as:

• Inviting the employee to a meeting to discuss the request
• Allowing the employee to be accompanied
• Keeping a written record of the discussion.

What will remain the same

Although the Bill will introduce additional obligations on employers when considering flexible working requests, the proposed changes do not go as far as expected. The following are not changing:

• The eight statutory grounds for refusing a request, which include the burden of additional costs; detrimental effect on ability to meet customer demand and detrimental impact on performance.
• The penalty for failure to comply. This remains as 8 weeks' pay (currently capped at £5,600).

Also, the right to request flexible working will continue to apply to employees only, not workers.

Impact on employers

The government has indicated that the reforms will not take effect before 2026, and the Next Steps document which accompanied the Bill confirmed that there will be a consultation on the proposed changes. It would be good practice for employers to plan ahead by reviewing their flexible working policies and practices and ensuring that managers are properly equipped to handle flexible working requests.

Workbox by Brodies subscribers can access practical and up-to-date content to support them in managing the evolving HR and employment law landscape: see our HR to-do list and the dedicated pages on flexible working.