Flexible working to become a day one right – are you ready?

The flexible working law is changing from 6 April 2024. From this date, all employees will be able to make a flexible working request from day one of their employment. 

What else is changing from 6 April 2024?

• The number of requests an employee can make is increasing from one to two per 12-month period.
• The time the employer has to consider the request is decreasing from three to two months.
• The employee will no longer need to explain how the change will affect their employer or how to address such effects.
• The employer now has the responsibility to ‘consult’ with the employee when intending to reject their flexible working request, either in full or in part. 

How will this impact employers?

The employer's approach to hybrid working is likely to be one of the most significant areas. If an employer is not already operating in a hybrid capacity, they must be able to justify this to recruits. They will need to consider which one of the prescribed legitimate reasons applies for rejecting a flexible working request. 

Recruitment processes should be reviewed to ensure consideration is given to the flexibility of the role (eg remote or hybrid). This should then be built into discussions with candidates. Having those conversations from the outset will set expectations and may mitigate the risk of flexible working requests being submitted on the first day of employment. It may be that, on reflection, the role could become flexible, making it more appealing to a broader range of candidates.  

Given that the number of requests per year will increase to two, employers may see an increase in flexible working requests. However, responding within the tighter timeframe is likely to have the greatest impact on management and HR resources. Employers should review processes to ensure that they can easily meet the shortened timeframe of two months. 

Rejecting a flexible working request may not necessarily expose the employer to the risk of an employment tribunal claim, as there is no standalone claim that can be brought. However, not following the process and not carefully considering the response may expose the employer to indirect sex discrimination claims. This is because, historically, more females than males will ask to make a change to their working pattern to accommodate child-caring responsibilities. It’s essential to ensure a robust process is in place, and consultation is carried out with the employee, which reasonably considers their request. If it is being rejected, the employer needs to clarify the legitimate reason that is being relied on. 

What key steps should employers be taking? 

• Update employers’ handbooks and relevant policies.
• Review processes to ensure there is the HR resource to deal with an increased number of requests and shortened time limit.
• Provide training for line managers so they understand their obligations and how they must deal with a request.

How RSM can help

We can help train your managers to feel confident dealing with flexible working requests. If you have any queries about changes to your flexible working policy or processes, please contact Kerri Constable or Charlie Barnes.