Flexible Working: A Right to Ask – Not a Right to Have!
Undeniably, flexible working has become a defining feature of the modern workplace. Whilst it might represent progress for some, it represents a loss of structure and control for others.
But, in reality, for most employers flexible working is somewhere in the middle. What has been made clear since the COVID pandemic, is that employees feel increasingly entitled to flexible working. It should be clear, however – flexible working is NOT an automatic entitlement.
Since April 2024, employees have been given a right to request flexible working from day one of their employment. Employees are eligible to make a maximum of two statutory requests within a 12-month period, and these must be considered reasonably by the employer.
That said, the underlying principle remains unchanged – employees have a right to request flexible working, they do not have a right to be granted flexible working! Employees are still entitled to reasonably refuse a request where there is a legitimate business reason.
Business needs still come first
Despite the new work culture we have adopted, and the increased focus on flexibility, flexible working is not suitable for all organisations who need structure, consistency and collaboration to efficiently operate.
Some organisations have genuine concerns around the impact of flexible working arrangements on their service delivery, detrimental impact on quality of work or performance etc. And in some roles, especially those requiring a close team collaboration or time-sensitive work, in-person working is essential.
So, whilst flexible working may work for some organisations, it will not suit every role, and employers are entitled to enforce policies in line with that.
A useful reminder from the tribunal
A recent tribunal decision reinforces this position in the case of Paul Macdonald v Computershare. The Claimant, a technology specialist, brought a claim against his employers for discrimination for refusing his request to work permanently from home to support childcare responsibilities. The Claimant told the Tribunal that he sought full-time remote working to manage occasional school pick-ups and to help his wife with childcare during his short comfort breaks.
The employer cited the needs of the role which involved “high-priority and time-critical IT incidents” and the detrimental impact on the performance and quality of work handled by the Claimant due to the critical nature of his work. The tribunal upheld the employer’s decision, accepting that the employer’s reasoning was justified and that the level of childcare involvement proposed by the Claimant, did not outweigh the business needs.
With this ruling, the message for employers is clear: fret not, for flexible working requests can lawfully be refused where there is a sound business rationale.
The legal landscape: what’s new?
With the new Employment Rights Act 2025, the legal framework in relation to flexible working places greater emphasis on how decisions are made, rather than the outcome itself.
From 2027, employers will be required to consult with employees before refusing requests, respond within a two-month timeframe, and rely on one of the eight recognised statutory grounds for refusal: the burden of additional costs, a detrimental effect on the ability to meet customer demand, an inability to reorganise work among existing staff or recruit additional staff, a detrimental impact on quality or performance, insufficiency of work during the periods the employee proposes to work, or planned structural changes.
Although these are not set to remove the employer’s ability to organise work in a way that supports the business, it creates guidelines for all parties involved and sets expectations to avoid unnecessary litigation.
Balance, not obligation
Flexible working can often seem like an all-or-nothing topic in this day and age, but in practice, its is all about balance and what works best for you.
Employers are still in control of how flexible working is carried out and the law does not encroach on that right; it merely encourages that decisions are made fairly and consistently with sound and legitimate reasoning.
Ultimately, however, the question is not whether flexible working is good or bad, it is whether it works for you.
ACAS provide helpful information on this topic: https://www.acas.org.uk/flexible-working
Our Retainer Service
Our employer support scheme provides unlimited advice on employment law issues, including flexible working requests. Full details are here: https://keelys.co.uk/employment/
If you would like a quote please email me: ahassan@keelys.co.uk