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[Responsible Business] New flexible working laws: your questions answered

On 6 April 2024, new rules on flexible working came into effect. Thanks to Irwin Mitchell who below answer some of your key questions on the… View Article

COMMENTARY

[Responsible Business] New flexible working laws: your questions answered

On 6 April 2024, new rules on flexible working came into effect. Thanks to Irwin Mitchell who below answer some of your key questions on the new regime and how it will operate within the retail sector in practice.

By Charlotte Rees-John

How has the law on flexible working changed?

You can read our earlier blogs on the 6 April 2024 changes to the flexible working regime here and here.

Will a statutory request for flexible working made before 6 April 2024 “count” as one of the two statutory requests permitted in any 12-month period?

Yes. The legislation makes clear that, when determining the number of applications an employee has made during any 12-month period, any application made before 6 April 2024 (and during that period) is to be included.


If an employee submitted a flexible working request before 6 April 2024 and the process is still ongoing after 6 April, what is the time limit for responding to the request – two months, or three?

From 6 April 2024, the statutory time limit for responding to applications was reduced to two months (from three) from the date the request is received. This two-month time limit only applies to applications made on or after 6 April 2024.

Therefore, any applications made before 6 April 2024 will be subject to the previous time limit of three months, even if these are ongoing/outstanding at 6 April 2024.


An employee made two statutory flexible working requests on 12 January 2024 and 15 April 2024. When will they be able to make another statutory request under the new rules?

From 6 April 2024, the number of requests an employee can make increased from one to two in any 12-month period.

As per the second question above, any requests made before 6 April 2024 should be included and so the 12 January 2024 “counts” as one request for these purposes.

“Any 12-month period” suggests a 12-month rolling period rather than say, for example, the calendar year.

Under the old legislation (where an employee could make just one request in any 12-month period), the law was clear that time was to be counted from the date the employee made a request. The new legislation no longer expressly states this, but it does confirm that a flexible working request is taken as made on the day it is received. (For emails and hand delivered post, a request is received on the day of transmission/delivery (i.e. that same day). For requests sent by post, it is received on the day it would have been delivered in the ordinary course of post.)

As such, the 12-month time period should be counted from the day the flexible working request is received (and not when the request has been concluded, for example).

Turning to the example above, if we presume that the first request was received on 12 January 2024 and a subsequent request was then received on 15 April 2024, the employee will not be able to make another request until 12 January 2025.


What if we reject an application and the employee submits the same application again (given they are able to make two applications under the statutory scheme in a 12-month period)?

You should consider the application carefully and whether anything has changed – either the content of the request itself, or if there have been changes within the business that impact/change your earlier response and the validity of the business reasons you had cited.

Since 6 April 2024, it is now a statutory requirement that you consult with the employee before rejecting any request. Therefore, it is important that you meet with the employee to discuss their request (even if nothing has changed since you last considered/responded to it).

You will also need to set out which one or more of the statutory business reasons for refusal applies and why.


The changes to the legislation will likely lead to more requests for our business. What can we do if we receive multiple similar requests and cannot accept all of these?

The issue of dealing with competing requests often causes problems for organisations. The Acas guidance (which accompanies the new Acas code of practice) suggests that employer should handle these fairly by:

  • Considering each request in the order they are received.
  • Following the same procedure for each request.
  • Looking at what is possible, rather than matching previous decisions.
  • Not prioritising requests based on people’s personal situations other than when someone is requesting a reasonable adjustment related to their disability.

The guidance also suggests that if you receive numerous requests for a similar change and cannot accept all the requests, you should talk to each employee about alternatives and try find a compromise. If it’s not possible to reach a solution, the guidance advises considering each request separately, in the order they were received.

If doing the latter and applying a “first come, first served” approach, this may feel harsh, but has the advantage of being logical and clear.

However, importantly, if the request is made from an employee who is disabled, Acas recommends that you treat this as a request of a reasonable adjustment (and this is a separate legal right to the flexible working procedure). A failure to consider and prioritise this request could result in a (costly) disability discrimination claim.


Tools to support you

Irwin Mitchell have created a number of resources to support employers and line managers in getting up to speed with the new rules on flexible working.

These include:

  • A free flexible working policy – containing all of the April 2024 updates to the law. If you’d like a copy please get in touch below
  • flexible working toolkit, containing a suite of template letters for responding to requests, a template policy and FAQs
  • A fixed-price online training module for line managers on flexible working, including the April 2024 changes on how to respond to requests (including spotting legal risks)
  • Bespoke training for all employees on all aspects of flexible working, of equality, diversity and inclusion (EDI)
  • An EDI audit to review your organisation’s policies and process to identify any issues and create a measurable strategy to support you in becoming a more diverse and inclusive business.

For more information on the above, or for a copy of the webinar recording, please contact Gordon Rodham.

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