Roman MacKenzie breaks down upcoming changes to flexible working due to come into force with the Employment Rights Bill.
In 2023, we wrote about the then upcoming change to the law to give employees a day-one right to request for flexible working. Two years later, the forthcoming Employment Rights Bill is set to further strengthen flexible working rights.
Statistics show that younger workers (ages 16-34), and in particular female workers, are most likely to request flexible working. Since general trends in the dental industry show an influx of female, younger workers, brushing up on your obligations is critical.
Currently, from day one of employment, employees can submit two statutory requests for flexible working in a 12-month period. From receipt of a written request, employers must consider and issue their response within two months (unless agreed otherwise) and importantly, must deal with requests in a reasonable manner. Where employers consider a request may not be granted in full, they should consult with the employee before making a decision.
What are the grounds for rejecting a flexible working request?
Employers can only refuse a request on the following statutory grounds:
- The burden of additional costs
- Detrimental effect on ability to meet customer demand
- Inability to reorganise work among existing staff
- Inability to recruit additional staff
- Detrimental impact on quality
- Detrimental impact on performance
- Insufficiency of work during the periods the employee proposes to work
- Planned structural changes.
What are the main changes?
The bill proposes significant changes to employment law generally. However, in respect of flexible working the key changes proposed are:
- The introduction of a ‘reasonableness’ test when refusing requests: whilst employers are already required to act reasonably when handling requests, under the bill, employers would also need to show that it was reasonable for them to refuse the request on the above relevant grounds(s)
- Additionally, where a request is refused, employers would be required to provide written grounds for refusal and explain why refusal on those ground(s) was reasonable
- Regulations to set out the required steps when consulting an employee before refusing a request are also proposed.
A consultation is expected in late 2025/early 2026 to develop the detail surrounding flexible working, with formal changes in 2027.
What aspects of the flexible working process will not change?
The ACAS Code of Practice on Requests for Flexible Working (Code), which supports the current statutory scheme, already recommends confirming the outcome in writing and, where refused, providing the written grounds. Accordingly, the requirement for written reasons may not change much. They may also be explaining to employees why they consider their decision is reasonable. However, those unfamiliar with the code could be caught out when the provisions come into force.
The current flexible working scheme has been accused of lacking ‘teeth’ as tribunals are limited in their scrutiny of employers’ decisions and how much compensation they can award. It is unclear how much the bill will change this, since the maximum compensatory award is not being increased. Much will likely hinge on how Tribunal interpret reasonableness in terms of refusal and what any regulations say about consultation. Regardless, failing to follow the correct procedure can have other consequences, such as discrimination claims which can be costly.
Should flexible working be causing you a toothache, Thorntons are on hand to assist and can provide employment law advice across Scotland.
Get in contact with one of the team today on 03330 430350 or visit our website at www.thorntons-law.co.uk.
This article is sponsored by Thorntons.
