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A chance for employers to have their say on new flexible working
request consultation process.
The Government has launched a consultation on proposed changes
to the current process for handling flexible working requests set
to come in next year.
The stated aims of the changes are to bring more fairness and
consistency to the way employers respond to such requests and to
make it more likely that flexible working requests will be
accepted. The Government hopes to bring greater clarity to the
expectations on employers dealing with flexible working requests
without creating unnecessary additional burdens on them.
The Government is keen to see a more collaborative approach
between employers and employees, shifting expectations towards
accepting requests which can be reasonably met. The proposals
encourage a process of discussion leading to creative solutions
which work for both employers and employees, with the focus being
on what is possible rather than what is not possible.
Under the proposals, employers would still be able to refuse a
request when it is not reasonable to accept it, and would still
have to refer to one of the eight business reasons for refusing.
However, there will be an additional requirement to explain the
rationale for refusing a request with rights to bring a claim where
employees consider this requirement has not been met.
The new reasonableness test
Employers are already obliged to deal with flexible working
requests reasonably. This obligation is focused on following a
reasonable process which is in line with the Acas Code of Practice on requests for flexible
working.
From 2027 employers refusing a request will also be required to
explain to the employee which of the current 8 statutory business
reasons applies and why the refusal of the
request is reasonable.
Currently, employees can only challenge a flexible working
decision if they consider that it has not been handled reasonably.
Under the new rules, employees will also be able to bring a claim
in the Employment Tribunal if they consider their employer has
unreasonably rejected their request. The Tribunal will be able to
require the employer to reconsider their decision and may award
compensation of up to 8 weeks’ pay (with the statutory cap on
weekly pay applied). This is in line with the current maximum award
for failing to handle a flexible working request reasonably.
Acas will consult separately on changing its Code of Practice on
flexible working requests to include new guidance for employers on
this new reasonableness test.
Suggested process when employer is considering rejecting a
flexible working request
The Government is proposing a new consultation process which
employers must follow if they are considering refusing a statutory
flexible working request. It aims to encourage the exploration of
viable solutions and trials of flexible arrangements.
The suggested process is as follows:
1. Arrange a consultation meeting
a. Meet with the employee to
consider ways to address challenges with the requested arrangement
and explore whether a suitable alternative arrangement could be
agreed.
b. This meeting must be held without
unreasonable delay and within the two-month period for making a
decision (we may see a required timeframe being set for holding
this meeting following the Government consultation).
c. The employee must be informed
about the context of the meeting in advance to allow them to
prepare for it (requirements for the amount of notice need for this
meeting may be set once the process is finalised).
d. A person with the authority to
make a decision about flexible working arrangements (the
decision-maker) must attend the meeting. This could be the
employee’s line manager.
e. The decision maker will be
required to keep a record of the discussion during the meeting.
2. During the meeting
a. The meeting must allow for
sufficient discussion of the request and any potential
alternatives.
b. The decision-maker must
clarify whether the employee would like the proposed request to be
considered as a reasonable adjustment in accordance with the
Equality Act 2010.
c. The decision-maker must
clearly communicate any challenges they identify with the original
request. They must explain why they feel that it would not be
feasible to accommodate the request, or why the request is not
reasonable, referring to the relevant business reason(s).
d. The decision-maker must
consider whether there might be ways to navigate these challenges
and accommodate the request.
e. If the potential impacts of
a new arrangement are unclear, an employer and employee could
choose to trial it for a fixed period of time.
3. Exploring alternatives
a. If the original request
cannot be feasibly accommodated, the employer and employee must
consider whether there are feasible alternative arrangement(s).
b. Employers can only reject
proposed alternative arrangements where one of the 8 statutory
business reasons applies.
c. Employers must record the
outcome of this discussion and communicate this with the
employee.
4. Written outcomes: employers must provide written notification
of both:
a. The outcome of the meeting:
a summary of what was discussed and any conclusions or next steps
agreed during the meeting between the employer and employee about
the flexible working request (for example, whether alternative
arrangements were explored, or if a trial period was agreed);
and
b. The outcome of the request:
the final decision made by the employer about the flexible working
request (for example, whether the request was approved, rejected,
or if an alternative arrangement was formally agreed).
How could these changes impact on employers?
Although these new proposals do not create a right to flexible
working arrangements, they may well nudge employers to be more open
to flexible working requests and to explore creative alternative
solutions.
However, the process of dealing with flexible working requests
is likely to be more burdensome for employers.
In particular, a requirement to provide an explanation of why it
is not reasonable to accept both the original
request and any alternative arrangements put
forward by the employee as part of the consultation could add
significantly to the time and resource needed to consider and
respond to the request, and may lead to requests for multiple trial
periods for different alternative arrangements.
Employers will need to ensure that they have clear, workable
processes in place to deal with requests in a timely way in order
to meet these additional requirements within the two-month
timeframe for making the decision (unless a longer period can be
agreed with the employee).
No doubt there will be concern from both employers and employees
about how already stretched employment tribunals will deal with
claims about the reasonableness of decisions on flexible working
requests within a timeframe which has a meaningful impact on
working lives and practices.Â
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.