What the ‘day one’ right to request flexible working means for employers

Thrings employment lawyers

Where are you today? Are you WFH or in the office? That’s a question many of us are much more used to now than we were three years ago.

The idea of flexible working is nothing new – the right to request changes to working patterns has existed in law for all workers since 2014, and it was first introduced for some parents way back in 2003.

However, the pandemic made terms like ‘WFH’, ‘hybrid working’ and ‘remote working’ commonplace for the first time for many workers and employers.

Despite this, in the eyes of the law, flexible working has not been seen as the norm – workers could only request it after being employed for 26 weeks, and employers could turn requests down if they had a valid business reason for doing so.

Campaigners, including the TUC, have argued that the system was not fit for purpose – making it too easy for employers to turn down requests and ‘stigmatising’ flexible workers as outside the norm. They pointed to research indicating that 51 per cent of women had experienced discrimination or disadvantage as a direct result of having a flexible working request approved.

Previously, some ministers had been vocal about encouraging staff back to work in the office post-pandemic, but the Government has now signalled a significant shift by making flexible working the default. This removes the 26-week requirement and brings a ‘day one right’ to request flexible working to millions of employees. Workers are also permitted to make two flexible working applications in a 12 month period. In addition, employers are also to be encouraged to suggest alternatives if an initial request cannot be granted. For example, if it is not possible to meet an employee’s request to change working hours on all their working days, the employer should consider making the change for certain days instead.

The changes are in response to the recent Making Flexible Working the Default consultation which asked businesses, charities, campaign groups and professional bodies about their attitudes to remote and hybrid working and flexible hours.

The Government is keen to point out that flexible working doesn’t just mean a combination of working from home and in the office. It can mean employees making use of job-sharing and flexitime, and working compressed, annualised, or staggered hours.

Legislation is also planned to remove exclusivity clause restrictions that currently restrict around 1.5million low paid workers – those who earn £123 a week or less – from working for multiple employers.

The Department for Business, Energy & Industrial Strategy describes these measures as ‘no-brainer’ that will lead to higher productivity and staff retention thanks to a happier workforce with a better work/life balance – but this doesn’t mean employers won’t have to think carefully about the implications.

Some employers, particularly small and medium sized businesses, are likely to bristle at the increased administrative burden of staff being able to request flexible working from day one and possibly making two requests each year.

Employers will be at increased risk of employment tribunal claims if they fail to take the changes into account. Workers are entitled to bring claims if their employer does not observe the requirements of the flexible working legislation. Compensation for such breaches is capped at eight weeks pay but disputes in relation to flexible working often form part of larger discrimination and detriment claims.

Businesses will want to prepare by ensuring their employment contracts, staff handbooks and internal policies reflect the new ‘default’. It will also be important to ensure that people in management positions who may be responsible for considering flexible working requests are aware of their obligations.

The Thrings Employment team is experienced at supporting businesses with policies and documents, and offers straightforward advice for employers. For more advice please get in contact today.


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