Flexible working requests will become a day one right from 6 April 2024

Currently an employee needs 26 weeks’ service to make a flexible working request; however new regulations laid before parliament this week confirm this will become a day one right from 6 April next year. From the same date, enhanced redundancy protections for parents and a new right to carer’s leave will also come into force.

The “day one” right will take effect for any flexible working requests made on or after 6 April 2024. 

This is a right to request flexible working and not a “right to have” flexible working –  employers can still turn down requests they can’t accommodate. 

With new starters being able to make a request, employers may want to consider possible flexible working options when designing and creating new roles and how these might (or might not) work in practice (depending on business needs) so that you’re ready to consider and respond to any early requests that are made. 

There is no current legal duty on employers to set out in job adverts whether or not the role is suitable for flexible working; however, there is nothing preventing employers from doing so if they wish. If the job can be done flexibly, being open in the recruitment process may prevent the need for a day one flexible working request.  

Further changes to the flexible working regime are also expected next year, including: -

• an increase to the number of flexible working requests an employee can make in a year from one to two; and 
• a reduction to the length of time an employer has to respond to the request from three to two months (including hearing any appeal). 

We expect these further changes may also come into force on 6 April 2024, but await further regulations to confirm this.

The eight statutory business reasons for refusing a flexible working request will remain unchanged.

A new ACAS Code of Practice on handling requests for flexible working is also expected next year (following a consultation on the draft Code which closed on 6 September 2023). You can read the draft Code of Practice here.

Enhanced redundancy protections for new parents 

Under current rules, before making an employee on maternity leave, shared parental leave or adoption leave redundant, employers are obliged to offer them a suitable alternative vacancy where one exists in priority to anyone else who is provisionally selected for redundancy.

The Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 have been put before Parliament and will extend this protection as follows: -

1. Pregnancy and maternity leave – employees will be now be protected during pregnancy (from the point they tell their employer they are pregnant) and during an additional protected period after they return to work from statutory maternity leave. 

This period is calculated from the first day of the expected week of childbirth for a period of 18 months. This means that, if an employee takes their full 12 months of statutory maternity leave, they’ll receive an extra six months of protection following their return to work. 

The new rules apply where the employer is informed of the pregnancy on or after 6 April 2024, and for the additional protected period, for any maternity leave ending on or after 6 April 2024. 

The new rules will also afford protection to employees who have suffered a miscarriage for a period of two weeks after the pregnancy ends.

2. Adoption leave – employees will now be protected during adoption leave plus during an additional protected period when they return to work, calculated from the day the child is placed for adoption with the employee for a period of 18 months.

3. Shared parental leave – similarly, employees will now be protected during shared parental leave plus an additional protected period when they return to work, calculated from the date of birth of the child/the child’s placement for adoption for a period of 18 months (the additional protected period will only be available providing the employee has taken at least six weeks of continuous shared parental leave and will apply to shared parental leave starting on or after 6 April 2024). This protection won’t apply if the employee is otherwise protected under the adoption or maternity provisions as above.

Carer’s leave

The Carer’s Leave Regulations 2024 have also been laid before Parliament and are due to come into force on 6 April 2024.

This will introduce one week's unpaid leave to help employees with long-term caring responsibilities balance these with their paid work. 

It will be a “day one” right and leave can be taken in one single block or in individual, non-consecutive half days or full days.

Employers are able to postpone a request if they reasonably consider the operation of their business will be unduly disrupted.

The rules also protect employees from detriment or dismissal because they take, or seek to take, carer’s leave or if the employer believes that the employee is likely to take carer’s leave.

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