Our Employment Law team are reminding employers of the importance of complying with flexible working laws, especially as hybrid and remote working continue to reshape modern employment.

Flexible working is now firmly embedded in employment rights, and employers must ensure their policies and practices are legally robust to avoid potential disputes and discrimination claims.

Flexible Working: Understanding Current Employer Obligations

Under current UK law:

• All employees have the right to request flexible working from day one of employment.
• Employees may make up to two flexible working requests in any 12-month period.
• Employers must respond within two months of receiving a request unless an extension is agreed.
• If refusing a request, employers must provide a valid reason based on one of the eight statutory business grounds.
• Employees no longer need to explain the potential impact of their request on the business.

Employment Solicitor Kerry Hudson, stresses the practical importance:

“Employers must treat flexible working requests seriously and respond in a timely, documented, and fair manner. Ignoring or mishandling requests — particularly where they relate to carers, parents, or disabled employees — can expose businesses to discrimination risks.

There is no automatic right for employees to work flexibly, but employers are required to properly consider all requests and clearly communicate any refusals with evidence.

Hybrid and remote working arrangements must also be treated consistently and fairly across teams to prevent inadvertent disadvantage to any group of employees.”

Managing Sickness Absence in a Hybrid Workplace

We would also like to remind employers that managing sickness absence requires equal treatment for remote, hybrid, and office-based staff.

Absence policies must be applied consistently to avoid claims of unfair treatment. Employers should engage in regular dialogue with absent employees, offer support for returning to work, and make reasonable adjustments when necessary.

Introducing clear review triggers — such as meetings after a set number of absences — can help maintain transparency and fairness across the workforce.

Action Points for Employers

We recommend businesses act now to:

• Review and update flexible working policies to reflect current law and best practice.
• Update employment contracts and handbooks to support flexible and hybrid working frameworks.
• Train managers and HR teams to properly handle flexible working requests and sickness absence.
• Maintain clear documentation of all decisions regarding flexible working and sickness management.
• Ensure consistent application of policies across hybrid, remote, and office-based workers.

A Competitive Advantage Through Compliance

With flexible working requests becoming increasingly common, and tribunals expecting employers to follow proper procedures, businesses must take proactive steps to ensure compliance.

Kerry concludes:

“The way employers handle flexible working requests reflects directly on their workplace culture. Those who approach requests fairly and transparently are not only protecting their businesses legally, but also enhancing their ability to attract and retain top talent.”

If you require employment law services and would like to discuss your situation with an expert employment solicitor, then please contact us. We offer employment services to both Employers and Employees and our team are very happy to discuss your requirements with you.

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Workers will be able to ask for flexibility on how, where and when they work.  It was suggested that this right would be available from the first day of employment, however currently it has remained that a request can only be made after 26 weeks of employment.

Whereas employers previously didn’t need to consult with their workers before giving their decision they will now be expected to consult with them on their request, providing a response within two months instead of the current three.

The new legislation – The Employment Relations (Flexible Working Act 2023) – also allows workers to make two requests a year – an increase from the current single annual request.

Furthermore, employees will no longer need to set out in their application the effect of their request on their employer’s business or how that could be dealt with.

Kerry Hudson, Employment solicitor says that whilst the changes affect the entitlement to make a flexible working request, and that a consultation would need to be had, the considerations the employer must bear in mind have not materially changed. A company can still refuse a worker’s request for flexible arrangements, particularly if it is not viable, or even detrimental to a business.

But with British business and industry facing ongoing problems with staff retention, most businesses today are willing to accommodate such requests in order to keep valued staff and avoid the expense of finding a replacement.

A report out earlier this year from global HR and payroll company Remote showed employee turnover in the UK and US had increased by nine per cent since 2019 – the last full year before the pandemic. In the UK it now stands at 35.6 per cent. Hybrid and remote workers in the UK were the least likely to look for new roles, at 38 per cent, compared to in-office workers (43.7 per cent). The report added that the recruitment of a new employee takes an average 40 days while the cost incurred to a business is an average 34.5 per cent of the new employee’s salary.

Although businesses didn’t legally have to agree to an employee’s request for flexible working, they did need to be mindful of other pieces of legislation such as the Equality Act 2010.  For example, if a request is made from an employee suffering from chronic fatigue syndrome for home working for some/all of their working week and it is not agreed, if the condition amounts to a disability, could the fact that the flexible working request being turned down be grounds for a failure to make reasonable adjustments and a claim for discrimination.

Similarly, a mother’s request when coming back from maternity leave for reduced hours is denied, could it amount to discrimination?

 A genuine attempt to consider the request together with consideration given for any possible compromise should be provided and the employer should be prepared to evidence that.  A proper reason needs to be advised as to why the request, if it can’t be agreed, should be set out.

Any new agreement should be formalised in writing, in many cases drawing up a new contract of employment outlining the varied terms and signed by both parties.

The retention of staff is notoriously difficult at the moment so many employers are trying to accommodate their employees and are offering flexible working. Where there has been a variation of terms, we would always advise formalising it. As an example, there may be a case where an employee is asked to return to the office full time, and even though it’s not in their contract argues that it’s an implied term they work from home on Fridays because they’ve done it for the past year and nobody has said anything.  If contract terms are set out in writing, it’s always much easier.

Contact our expert team, for more information or advice on Employment Law, for both individuals and businesses.

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Kerry Hudson, Employment Solicitor, said perhaps because of Covid and with a lot of businesses still not having fully returned to work, many employees are of the mistaken belief that flexible working hours are an automatic right, particularly if they have been on flexible furlough or working from home.

Whereas some employers are happy to accommodate such requests as they seek to retain their staff and can offer a very workable and happy compromise which can be done informally initially.  However, companies are also fully within their rights to insist the request is made through the formal channels, with a written request and a meeting.

Companies have three months to consider such a request – and even then, the answer may be no if the request would mean the business needs cannot be met.

The government has recently launched a consultation to allow workers to be able to make their request from day one in a new job. It is also anticipated such requests would be handled more quickly. But until that time the existing law for new employees still stands.

Kerry said: “Flexible working arrangements have long been used mainly by people who use childcare or who look after elderly parents/dependants

“But many more people have started to realise its benefits since the start of Covid – particularly if they have been on furlough – although that is not what realistically it was designed for.

“While many companies are in favour of employees working on a rotation basis from home, or at least are happy to accommodate their wishes, they are under no obligation to allow it, even if the employee does take it through the formal channels. For someone to make the request they have to have a valid reason – often more than a desire for an improved work life balance by working from home taking away the commuting time etc.

“But if someone is making a legitimate request, like they can’t accommodate childcare without flexible working, or they’re struggling to juggle their work with caring for an elderly relative, the employer must carefully consider the request, in some cases a failure has led to a claim for discrimination.”

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