The Employment Rights Bill: flexible working to become the default?

The Government pledged to make flexible working the default from day one except where it is not ‘reasonably feasible’.

Will the changes to flexible working proposed under the Employment Rights Bill (the Bill) make flexible working the default?

Background

Employees have had a day-one right to make a request for flexible working since 6 April 2024. An employer can refuse a request for one or more of a number of prescribed reasons including, but not limited to, the burden of additional costs, a detrimental effect on the ability to meet customer demand, and an inability to reorganise work among existing staff.

Employers are currently required to deal with requests in a reasonable manner and consult with the employee before refusing a request. However, if an employer considers that one or more of the prescribed reasons for refusal applies, there is no requirement for the employer to act reasonably in reaching its decision.

Proposed changes to flexible working under the Employment Rights Bill

The Bill introduces a test of reasonableness. This test will not make flexible working the default position from day one of employment as employees will still only have the right to make a request. However, it will make it harder for an employer to refuse a request.

Whilst the existing right to request flexible working will remain, employers will only be able to rely on one of the prescribed reasons to refuse a request where it is reasonable to do so.

if an employer refuses an application, the notification of the decision will have to:

• State the ground or grounds for refusing the application.
• Explain why the employer considers that it is reasonable to refuse the application on that ground or those grounds.

Further, the Bill will provide that the requirement to consult with an employee before refusing a request will include any steps specified in regulations made by the Secretary of State.

What does this mean for employers?

With an increasing number of employees requesting flexible work patterns for a variety of reasons, such as childcare and other caring responsibilities, disabilities and medical conditions, and lifestyle choices, the change is likely to result in a greater number of tribunal claims. Where a flexible working request is refused, the change introduces arguments about how reasonable it was for the employer to have refused the request.

However, no changes have been made to the compensation limit for a successful claim, which is currently eight weeks’ pay. This means that unless the employee is making a flexible working request for a reason related to a protected characteristic under the Equality Act 2010, such a claim is unlikely to lead to high compensation awards.

How can employers prepare for the change?

Many employers already deal with flexible working applications in a reasonable manner and only refuse a request where there is good reason to do so. However, with an increased risk of decisions being scrutinised in an employment tribunal, employers will need to ensure they can evidence the reasons for refusal and fully document those reasons when refusing an application.

Once the changes under the Bill have been finalised, employers should update their flexible working policies and procedures.

Details of proposed changes to other family friendly rights can be found in our article ‘The Employment Rights Bill: proposed changes to family friendly rights’.

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