Pauline Hughes

The Scottish government has recently announced that they will soon be passing new legislation around flexible working, updating the current rules to, ironically, make the scheme more flexible for employees.

What are the current rules on flexible working?

As it stands, employees with at least 26 weeks’ continuous service with their employer can make one request for flexible working every twelve months to change their working pattern.

Under the rules of the statutory scheme, the employee is required to set out to their employer the requested change to their working pattern and from when they would like it to take effect, explaining what effect they consider that the change will have on the organisation and their view on how the employer could deal with the request.

Whilst it is not mandatory in law, it is good practice for the employer to convene a meeting with the employee to discuss their request in more detail. Employers should be mindful of their legal obligation to deal with the request in “a reasonable manner” and within three months of receiving the request, although this timescale can be extended by mutual agreement.

Before issuing the employee with an outcome to their request, an employer can consider trialling the employee’s requested working pattern for an agreed period of time. Thereafter, an employer can refuse to grant a flexible working request, so long as they rely on one or more of the following eight prescribed reasons in law for doing so.

Reasons for rejecting a flexible working request

• The burden of additional costs;
• Detrimental effect on ability to meet customer demand;
• Inability to reorganise work among existing staff;
• Inability to recruit additional staff;
• Detrimental impact on performance;
• Insufficiency of work during the periods the employee proposes to work; or
• Planned structural changes (potentially team or company-wide).

Whilst it would not be good practice, and could be detrimental to employee relations to reject a request before meeting with the employee to discuss the same, or agreeing to a trial period, the employer is currently under no legal obligation to do so.

In the event of the employer refusing a request, the employee will have the right to appeal against this decision.

What changes are being proposed?

When the updated legislation (the Employment Relations [Flexible Working) Bill 2022-2023] is passed (no date has been confirmed as of yet), the following changes will take effect:

• Employees will be able to make a flexible working request from day one of their employment.
• Employees will be permitted to make two flexible working requests in any 12-month period. However, an employee cannot make two requests at the same time; one request must be dealt with in full, including any appeal process being concluded, before a second request can be made.
• Employees will no longer need to set out in their request what effect they consider that their requested change will have on their employer, nor their opinion on how an employer could deal with the request.
• Employers will have two months to deal with the request, a reduction from the current three months. That said, it is expected that this timescale can be extended via mutual agreement, in line with the current position.
• Employers will be legally obligated to consult with the employee regarding their request before it is refused. There will also be a duty bound to discuss alternatives to the request.

What are the implications of these changes?

In practice, employers are on notice that these changes will be coming into effect in the near future. As such, they should ensure that they have an updated Flexible Working Policy setting out their internal procedure and outlining for employees how requests will be dealt with.

Employees should feel somewhat assured that once the above Bill is passed, they no longer have to wait 26 weeks before making a request.

If you would like more advice on flexible working, or any other employment law matter, please do not hesitate to contact BTO’s specialist employment law team.

Pauline Hughes is a solicitor at BTO Solicitors LLP