Article written by Nic Hart, Alice Head and Sophia Radford of Duane Morris LLP

April 2024 heralds a number of changes to existing employment legislation and one area which will require businesses to update and align their current policies and practices are the changes to the rules regarding flexible working under the Employment Relations (Flexible Working) Act 2023 & Flexible Working (Amendment) Regulations 2023 .

Discussions across workplaces regarding employee’s physical attendance in the workplace have continued following the pandemic, and there has been an increase in flexible working request from employees wanting to maintain their hybrid or remote working patterns. This is expected to further increase from 6 April of this year when The Employment Relations (Flexible Working) Act 2023 comes into force and employees will have a “day one” right to request a flexible working pattern. The further amends to the Act provide that;

• Employees will no longer have to explain what effect their requested change may have on the employer nor will they have to explain how any such effect might be dealt with by the employer.
• Employees will be entitled to make two requests in any 12-month period -currently they are only able to make one request.
• Employers will not be able to refuse a request unless the employee has been consulted with. It should be noted that there is no detail given regarding the level of consultation required.
• Employers will have to deal with the employees request within 2 months of receipt of a request unless an extension is agreed. This is a reduction from the current 3 month period for employers to provide deal with a request.

Whilst these changes are aimed at assisting employees in making a flexible working request, both employers and employees should be reminded that it still remains a right to request flexible working and not a right to insist flexible working.

The amendments to the current legislation do not provide an automatic right to flexible working, such that employers may lawfully refuse a flexible working request where they have followed process and demonstrated careful consideration of the request.

An employer may still be able to reject a flexible working request for one or more for the following business reason as set out in the Employment Rights Act 1996;

• the burden of additional costs
• an inability to reorganise work amongst existing staff
• an inability to recruit additional staff
• a detrimental impact on quality
• a detrimental impact on performance
• a detrimental effect on ability to meet customer demand
• insufficient work available for the periods the employee proposes to work
• planned structural changes to the employer’s business

Whilst an employer may still be able to refuse a flexible working request they should be aware that an employee must not be subjected to any detriment or dismissal where;

• the employee has made or intends to make a flexible working request, or
• an employee has raised or intimated that they will raise legal proceedings against the employer in relation to their right to request flexible working.

It is also important for employers to be aware that where an employee seeks a reasonable adjustment for their disability through a request for flexible working, the employer must consider this in line with its legal obligations under the Equality Act 2010.

Acas Code of Practice on requests for flexible working

To assist employers and employees in understanding the amendments to the legislation Acas has published a draft Code of Practice on requests for flexible working to provide guidance to employers and employees on the statutory right to request flexible working as set out in the Employment Rights Act 1996 (as amended) and regulations made under it. The draft code was published on 11 January 2024 and is intended to come into effect in April 2024 alongside the amended flexible working requests legislation.

While any failure to follow the Code will not, of itself, make a person or organisation liable to legal proceedings, employers should be mindful that employment tribunals will take the Code into account when considering relevant cases regarding disputes arising over flexible working requests.

Wilson v Financial Conduct Authority

The amendments to the current legislation regarding flexible working request will assist in enabling opportunity for enhanced employee satisfaction with the ability for employees to request changes to their working patterns, however there may also be increased challenges for employers who are seeking to increase their employee’s workplace attendance.

A recent employment tribunal case- Wilson v Financial Conduct Authority provides some assistance to employers as a reminder of both the importance and benefits of following the statutory process and setting out clear reasoning when dealing with flexible working requests.

In this case, Miss Wilson, the Claimant, had been employed by the Financial Conduct Authority since 2005 and worked at a physical location until 2020, when it was agreed that she would work remotely for ‘health reasons’. At this time, Miss Wilson was employed as a senior manager.

As pandemic restrictions eased, the FCA adopted a policy requesting staff to attend their office location at least 40 per cent of their working time with up to 60 per cent of their hours to be worked remotely. This roughly equated to employees attending the office twice a week.

In December 2022, the Claimant submitted a flexible working application seeking to change her terms of employment to allow her to work completely remotely.

In March 2023, after a consultation process and consideration period, which took into account the Claimants positive performance reviews,  the FCA refused the application relying on the statutory ground of detrimental impact on performance or quality of output, given the Claimant “will not attend face-to-face training sessions, departmental away days/meetings” and “will not be able to provide face-to-face training or coaching to team members or new joiners.” The FCA also noted the Claimants input in management strategy and in person collaboration would be negatively impacted.

The Claimant lodged an appeal against this decision, which was subsequently rejected by the FCA at the end of March 2023. The appeal decision acknowledged the Claimants “good performance” to date but concluded that “it would still be better and of real benefit to you and, in particular, your team and your team’s performance, if they were able to connect with you in person in the office.”

The Tribunal Claim

The Claimant lodged a tribunal claim accusing the FCA of failing to communicate the appeal outcome within the statutory decision period and basing its rejection of the flexible working application on incorrect facts.

The tribunal found that the FCA had breached the statutory time limit to respond to the Claimants flexible working request by 21 days for which the Claimant was awarded compensation in the amount of £643.

In respect of the alleged “incorrect facts” that the FCA had relied on in rejecting her appeal, the tribunal heard at length from the Claimants manager who had first considered the flexible working request and found that the Claimants inability to engage in the following areas would detrimentally impact the quality and performance;

• meeting and welcoming new staff;
• internal training, supervision and department needs where a line manager has a visible presence;
• attendance at in-person events, conferences and planning meetings;
• attendance at weekly ‘cascade’ meetings where information is shared by senior managers and individual and team successes are acknowledged and celebrated. 

In his findings EJ Richter concurred with the FCA stating that, “an inability to complete these elements clearly does detrimentally impact upon the performance and quality of Miss Wilson’s work as it is expected by the Respondents. Again I readily acknowledge Miss Wilson’s excellent references and performance reviews and it is clear that she is performing well in her work, but ultimately she is not working in the way envisaged by the Respondent. As such these factors do seem to me to highlight areas where the Claimant’s work would not be to the quality or performance that her employers would wish if the application was granted.”

In further guidance to employers, EJ Richter emphasized “there is no right to require an employer to permit that an employee works exclusively remotely but, as is engaged in this case, there is a right that an employer considers such a request in accordance with the statutory scheme.”

Employers must consider their statutory obligations and bear in mind the conclusions of EJ Richter that- “there will not be one solution which will work for all companies or even for all roles within a company”. Whilst it is likely that there will be an ongoing ‘qualitative debate’ to be had regarding working practices, ultimately each flexible working request will require its own consideration. This will be particularly important to avoid any claims of direct or indirect discrimination.

It should be noted that this was an ET decision, and as such is not binding on employers in other cases, however it is a case which, in the words of EJ Richter, raises “key issues arising in the modern workplace which undoubtedly will be the subject of continued litigation.”

With this reminder that flexible working requests will remain a key issue in the workplace, employers should now ensure that their policies and procedures are aligned with the new amendments in readiness for 6 April 2024.

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