With the news that Zoom are requiring employees who live within commutable distances of its offices to work from the office on at least two days per week, there have been some views expressed that working from home (WFH) and hybrid working patterns may be coming to an end. Zoom’s position (when you look through the headlines) is more nuanced than that, but if there is a widespread move away from more flexible working arrangements which have been in evidence since 2020 employers may see an increase in employees exercising their statutory right to make a flexible working request. This comes at a time when the current statutory regime is going to change.
The current process
Under the present regime an employee who has been employed for 26 weeks or more has the right on one occasion in any 12 month period to make a formal request to their employer for a change to their terms and conditions of employment to permit a more flexible working pattern. Typical examples of changes which are sought are to change the hours when they work, to work part time, to work compressed hours or to work from a different work location which could include working from home. There are certain requirements which the employee must satisfy, including that the request must be writing and must set out how the employee considers the change would impact the employer.
Unless the employer accepts the request immediately it is required to consider the requests in a reasonable manner. There are then specified grounds on which a request can legitimately be refused, although these are relatively wide, and an employee must be given the right to appeal against a refusal of their request.
If the request is agreed, then the changes sought will constitute a permanent change to the employee’s terms and conditions of employment.
The new regime
On 20th July 2023 the Employment Relations Flexible Working Act gained Royal Assent. The bill changes both the scope for employees wishing to make a flexible working request and the ways in which employers have to deal with these. The Government have indicated that the new regime will come into force in the summer of 2024, in order to give employers time to prepare for changes. Tesco have announced that they have already changed their processes in order to comply with the new regime and it may be that other employers decide to do the same.
Perhaps the most notable change brought about by the Act is that employees are now able to make two formal flexible working requests in any 12-month period. The second request can still be made even if there is a previous one outstanding. The formalities that are required to make a request a valid statutory flexible working request have also been revised by the Act. Specifically there will no longer being a requirement for employees to set out the effect the requested change will have on the employer.
The Act also makes changes to the mechanisms for employers dealing with a flexible working request. Under the new regime employers will be under an obligation to consult with the employee making the request before any refusal and reduces the time frame for the employer’s response from three months down to two.
As now, employees will have the right to complain to an Employment Tribunal if they consider their request for flexible working arrangements has not been handled correctly.
Although not contained within the Act itself, in its press release announcing that the Act had received royal assent, the Government indicated that the right to request flexible working would be a ‘Day One’ right. This suggests that the 26 week employment requirement will be removed.
Actions to be taken
If there is indeed a widespread move back to more traditional office based work employees who have enjoyed WFH or hybrid working arrangements may well seek to exercise their rights to request permanent changes to their terms and conditions of employment and therefore make a flexible working request. With the changes to how an employer is required to respond to such a request due to come into force, employers may decide to update their procedures at this stage.
If you do require any assistance in putting appropriate policies in place or in responding to a specific request received we would be delighted to help.
Clare Waller, Partner, firstname.lastname@example.org
Hermione Porter, Trainee Solicitor, email@example.com