Flexible working – an update

It is trite law that any employee who fulfils the entitlement criteria has a statutory right under the Employment Act 2006 (“EA 2006”) to make an application to his or her employer to change his or her terms and conditions relating to: 

  1. how many hours are worked, and/or
  2. when that work is done, and/or
  3. where that work is done.

Until recently the right to flexible working could only be exercised for the purposes of caring for a dependent (as defined under s99(6) EA 2006 (now repealed)). 

The Equality Act 2017 and Flexible Working

The 2014 consultation document on the Equality Bill contained a number of suggested employment law reforms which were unrelated to the Bill’s main proposals and which subsequently formed Schedule 22 (employment legislation – miscellaneous amendments) of the Equality Act 2017. One of the proposed reforms was to widen the right to request flexible working, to be accomplished by amending the relevant provisions in the EA 2006 and then making new regulations. 

The amendments to the flexible working provisions contained in the EA 2006 were brought into operation on 1 January 2020 by the Equality Act 2017 (Appointed Day) (No. 5) Order 2018. 

What is the current position?

The restriction that applied (prior to 1 January 2020) to flexible working applications, whereby employees could only use the statutory procedure if their purpose in doing to so was to enable them to care for a child or an adult “dependent”, has now been removed. Any employee who fulfils the entitlement criteria (see below) may now make such an application, and his or her purpose in making it is no longer relevant to the right to apply.

The modifications to the EA 2006 reflect the changes which were made to the UK’s flexible working regime in June 2014. The amendments can be seen in the latest version of the EA 2006.

To be entitled to request flexible working, an individual must:

  1. be an employee;
  2. have at least twenty six weeks’ continuous service; and
  3. not have made an application for flexible working during the previous twelve months.

We understand that a consultation document has been prepared to accompany the new [flexible working] regulations – we will keep you posted on its progress.

Further, useful reading (UK specific): Acas Code of PracticAcas Code of Practice on Handling in a Reasonable Manner Requests to Work Flexibly

Leanne McKeown

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DQ is a leading Isle of Man based law firm with an international reach.

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