How to handle Flexible Working requests (Employment Rights Bill)

How to handle Flexible Working requests (Employment Rights Bill)

What does the new Flexible Working amendment mean for you and your business? How should you handle requests for flexible working? What are your employees’ rights in this area, and what are yours?

Here’s everything you need to know.

What change has been made to the Employment Rights Bill?

The Flexible Working (Amendment) Regulations 2023 Act has now come into effect and applies to any applications made from 6th April this year.

Previously, employees needed to be working for you for a minimum of 26 weeks before they could request to work flexibly.

Under the new amendment, they can request flexible working arrangements from the first day of their employment with you. They can make two requests within a 12-month period (previously they could only make a single request).

Employees are no longer required to discuss with their employer what impact their request may have, or how the effects can be managed.

As their employer, you are required to consult with an employee requesting flexible working before you can reject it.

Under previous rules, employers had 3 months to consider and respond to a request for flexible working; this has now been reduced to two months.

What does “flexible working” mean?

This can refer to your employee’s working hours or their pattern of work, for example, working part-time, flexitime, having compressed hours or adjusting their start or finish time. It can also apply to changing their working location, for example working from home.

What do you need to do?

Firstly, review your policies - and make sure your flexible working policy fits with the new law.

Make sure you have a process in place to review and respond to requests for flexible working - don’t wait for the first application to come in. Decide how you will deal with requests and make sure all managers are aware of this.

How should you respond to a request?

Firstly, ask your employee to make their request in writing, stating clearly what changes they wish to make.

It is important to consider all requests fairly and it’s always worth discussing with your employee. Of course, they are not obliged to discuss the potential impact on your business, but it may be helpful for you to know their thoughts and feelings on the matter.

Remember that while your employees can request flexible working patterns, you do not have to say yes.

Not all job roles are suitable for different working patterns - but it’s a good idea to approach all requests from the point of view of “how can we make this work” rather than “we don’t want to do this.”

What are the reasons for turning down a request?

There are eight valid reasons for turning down a request for flexible working and you can only turn down a request if one of these applies:

• The cost to your business would be too high
• Work cannot be reorganised among your other staff
• You cannot recruit more staff
• Quality will be negatively affected
• Your business’s ability to meet customer demand will be negatively affected
• Performance will be negatively affected
• There is not enough work for your employee to do at the time(s) they’ve requested
• There are planned changes to the business, and you believe the request will not fit with these plans

Look for a compromise

If you’re not able to accept your employee’s request as it is, look for ways to compromise:

• Could you agree to part of the request, for example allowing them to work from home two days a week instead of three?

• Could you agree to a short-term change, rather than permanently?

• If a weekly work pattern change is not possible, could a fortnightly pattern work?

What if you can’t agree to a flexible working request?

All decisions must be made fairly and using facts rather than personal opinion.

If you really can’t find a way to make it work, talk to your employee and explain the situation. Listen to their reasons for requesting the change and suggest other options where you can.

Ask them if they have any other ideas for future options.

You want your employees to feel happy and valued in their work. So even if you can’t accommodate their request, it’s important that they feel heard and understood.

Bear this in mind with any future hires

It’s important to communicate your flexible working policy, and the level of flexibility you can reasonably accommodate, when you’re hiring new employees - otherwise you could see your staff turnover rocket.

The employment landscape is changing, and jobseekers are keen to work for businesses that show that they value employee wellbeing. Flexible working opportunities are a great way of attracting the best new people to your team, so it’s in everyone’s best interest to make this work.

In conclusion

Your employees are now entitled to request a flexible working pattern from their first day of employment with you.

You must consider their request fairly and have a valid reason for turning it down.

If you're concerned about how this may affect your business, or worried about how to put it into practice, get in touch for an informal chat about how we could help you.

700 construction workers take their own lives every year in the UK

That’s a minimum of two lives lost, every single day, which is a really scary and awful statistic.

What a grim reality to remind us of the profound impact of mental health challenges within the construction industry.

Some unique factors might be contributing to high suicide levels in construction, including:

Male-dominated industry: Exacerbated by outdated beliefs that “men should be tough” and that showing any kind of vulnerability is somehow “weak” or “unmanly”, male-dominated industries are shrouded in stigma around openly talking about mental health, stress and similar challenges.

Physical demands and high-risk environments: This industry is inherently stressful, and the demanding physical expectations can further contribute to physical and mental health challenges.

Long working hours: Extended working hours compromises work-life balance and can mean not getting enough rest, which also increases the health and safety risks.

Job insecurity and financial instability: Seasonal fluctuations and market instability create personal financial instability, adding pressure to personal life.

So, as business leaders, what can we do to take positive steps to reduce stress at work and destigmatise mental health challenges?

Here are 3 areas to focus our efforts on:

Raise awareness and educate:
Increasing awareness and educating staff about mental health challenges and the signs of burnout are crucial for dismantling the stigma and encouraging employees to seek help early.

Regular check-ins:
Establishing a system of monthly check-ins between managers and their team members is great for improving employee engagement. Asking some wellbeing-related questions during these meetings creates opportunities to provide support.

Promote work-life balance: 
We shouldn’t need legislation to force companies to promote a better work-life balance or offer more flexibility for their people. Limiting excessive overtime and promoting a healthy work-life balance are essential for reducing stress in any industry - not just construction.

Providing employees with access to wellness resources such as an Employee Assistance Programme (EAP) is not always financially affordable for small businesses.

Fortunately, there are many charities and free resources available in the UK.

● Mind: Mind offers a range of resources, including information on mental health conditions, tips for well-being and access to their Infoline for support.


● Samaritans: A helpline available 24/7, Samaritans provide confidential emotional support for anyone struggling to cope.


● CALM (Campaign Against Living Miserably): Focused on preventing male suicide, CALM provides support through a helpline and webchat.


● Headspace: An app offering guided meditation and mindfulness exercises, Headspace can be a helpful tool for stress reduction.


● Woebot: A free app offering assistance with stress, anxiety, sleeplessness and depression, using proven Cognitive Behavioural Therapy (CBT) techniques.

Let’s work together to enhance well-being within your workplace. Together, we can break the silence surrounding mental health and help prevent suicide.

What is constructive dismissal?

You’ve probably heard the term ‘constructive dismissal’ before, but are you clear on what it actually means?

Constructive dismissal is the term that applies when a change to an employee’s working conditions or unfair treatment forces them to quit.

Sometimes this is confused with unfair dismissal, which is where you fire the employee.

With constructive dismissal, the employee feels forced out of the business due to conditions beyond their control (such as their employer’s behaviour).

Usually, an employee can only claim constructive dismissal if they’ve been employed with a company for more than 2 years. However, if they claim discrimination this rule doesn’t apply.

If an employment tribunal finds you guilty of constructive dismissal, you’ll be liable to pay compensation to the employee. The amount depends on factors like how long the employee has worked for you, their age and their weekly pay.

There’s a cap on the basic award of £17,130, and a cap on the compensatory award of £93,878. That means in total, including legal fees and travel expenses, you could be looking at spending more than £110,000.

This is just one of the reasons you want to avoid a constructive dismissal claim. Aside from the expense, it takes up a lot of time and can tarnish your business’s reputation, as well as creating a feeling of unrest or bad feeling amongst remaining employees.

With this in mind, what are some examples of constructive dismissal?

Mr Parbhjot Singh v Metroline West Limited

The employee went on sick leave following an invitation to a disciplinary meeting. He attended an occupational health (OH) appointment to assess his capability. The OH advisor didn’t suggest that his sickness wasn’t genuine. However, the employer believed that the sickness absence was a means of avoiding his disciplinary meeting, so paid the employee statutory sick pay instead of contractual sick pay.

The employee claimed to have been constructively dismissed due to the failure to pay their contractual pay.

The employment tribunal (ET) found that the employer failing to pay contractual sick pay was a breach of contract, but also stated that it was not a repudiatory breach. This was because the employer intended to maintain the employment relationship and withholding the employee’s pay was a means of doing this. However, the employment appeal tribunal (EAT) dismissed this line of reasoning, as the employee was entitled to pay which he didn’t receive.

Adams v Charles Zub Associates Ltd

The employee, Adams, hadn’t received his April salary by the 9th of May, so he quit his job and filed an unfair dismissal claim to an ET.

Ordinarily, because this constitutes a significant breach going to the “root of the employment contract”, the ET would conclude that the employee was constructively dismissed.

However, in this case, the ET found that although a breach of contract had occurred, it wasn’t the intention of the company to purposefully withhold the money, so it didn’t pass the test for constructive dismissal. This is because the employee was made aware of the organisation’s financial situation and the mitigating circumstances surrounding their pay.

This case highlights the importance of maintaining clear communication channels.

Craig v Abellio

In this case, an employee had been off work due to sickness. His sick pay was calculated and paid incorrectly as a result of a series of errors and miscommunications by the employer. The employee raised a grievance and the employer was originally found to owe £2,000 to the employee. Then, the employer was found to owe over £6,000.

The employer agreed to pay the employee by a specified date but failed to pay by the deadline. The employee resigned the next day and brought a constructive dismissal claim.

The ET and EAT went back and forth on whether the issue was a result of mistakes or a genuine repudiatory breach. Originally, it was found that the failure to pay was merely a mistake and not a breach of an express contractual term. However, the EAT eventually sent the case back to the ET for further consideration.

This case demonstrates how difficult it can be to determine whether the final straw in a constructive dismissal is enough to raise a successful claim.

As you can see, constructive dismissal isn’t clear cut. Tribunals can be long processes, and even when you think they’re concluded, an appeal can be launched.

If you’re unsure as to where you stand with any employee dispute, or potential cause for concern, take expert advice before you act. It could save you a lot of time, money and stress. If I can help you with that, please get in touch.