The flexible working provisions were set out in sections 80F to 80I of the Employment Rights Act 1996 together with the Flexible Working Regulations 2014.  However, recent changes to legislation have brought into force, with effect from 6th April 2024, Employment Relations (Flexible Working) Act 2023 and Flexible Working (Amendment) Regulations 2023 (SI 2023/1328). Under this legislation the following criteria have to be met in order for an employee to make a flexible working application:

• They must be an employee of the company.
• The Flexible Working (Amendment) Regulations 2023 (SI 2023/1328) has revoked the requirement for the employee to have 26 weeks continuous employment before being able to make a request for flexible working. In its place there is now no requirement for continuous employment to be able to make this request so a request can be made from day one of employment.
• The employee triggers the procedure by putting the request in writing.
• The employee no longer has to explain what effect their requested change may have on the employer and how that effect might be dealt with.
• The employee is entitled to make up to 2 requests for flexible working in a 12 month period.
• The employer has 2 months (or extended by agreement) in which to consider, discuss and tell the employee the outcome of the request.
• The employer must deal with the application in a reasonable manner.
• The employer cannot refuse a request unless they have consulted the employee. Only then can a request be refused for one of the following reasons:

1. The burden of additional costs;
2. Detrimental effect on ability to meet customer demand;
3. Inability to reorganise work among existing staff;
4. Inability to recruit additional staff;
5. Detrimental impact on quality;
6. Detrimental impact on performance;
7. Insufficiency of work during the periods the employee proposes to work; or
8. Planned structural changes.

Issues arising out of the Boots decision

Boots could run in to some issues as a result of their decision to require their employees to return to the office, both from a legal and corporate viewpoint.

Issues will arise if home working is a part of the terms of the contract of employment that employees have and if change is to be affected to those terms, then both parties must be in agreement.

Where they are part of contractual terms and agreement cannot be reached as to a variation, the policy of fire and rehire might be used by Boots to affect the changes to the contract but this is fraught with danger, not only on a reputational level but also for employee relations, and gives rise to potential tribunal claims. In addition to this, any fire and rehire of more than 20 employees must result in the employer collectively consulting with all of the employees that they wish to change the terms of their contracts of employment by this method.

Due to the recent changes in the law, outlined earlier, all employees will have the right to request flexible working from day one of their employment. Therefore any employee of Boots has the right to make a formal request to work flexibly and this will likely see an increase in the amount of applications that Boots receive for flexible working, costing both time and company resources.

Flexible working has become a common practice in the work place ever since the coronavirus, so much so that employers may add this to job posts to attract more recruits from a wider geographical area and  some employees will only look for certain jobs if this type of working arrangement is offered.

Further information can be found on Flexible Working at https://www.gov.uk/flexible-working.

It is important for any employer considering changes to their existing employee working arrangements to seek advice, particularly as to whether the arrangements could be deemed contractual, before seeking to implement the changes.

If you require any assistance regarding the matters outlined in this article, or wish us to review your terms of employment in your employee’s contracts, please contact a member of our team.