d&i Leaders Monthly Equality Law Update
Upcoming changes to flexible working
By Homa Wilson on 10 August 2023
The UK Employment Relations (Flexible Working) Act 2023 (The Act) will come into force in July 2024.
‘Flexible working’ is an umbrella term, which is used to describe any method of working which deviates from usual working patterns. It can include working part-time, job sharing, working compressed hours, and working remotely.
Making a request to work flexibly has been a right available to most employees since 2014. The changes under the Act are aimed at giving employees more flexibility, in terms of where and when they work, and at making the process of requesting flexible working more effective. But how much is really going to change?
The current law
The existing law requires that:
- Employees have a minimum period of employment with the employer (at least 26 weeks) before they can request flexible working
- The request must be in writing
- Employees can only make one request in any 12-month period
- Employers have three-months (which can be extended) to make a decision
- If the request is rejected, the employer must base its rejection on at least one of the following eight reasons which are set out in legislation:
- 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.
From these eight reasons, it’s clear that employers are given ample scope to reject requests.
What to expect in 2024 – changes to the law
When the Act comes into force, the following changes will take effect:
- Employees will be entitled to make two flexible working requests in any 12-month period, rather than just one;
- Employers will be required to respond to requests within two months of receiving them, rather than three.
- Employees will no longer have to explain the impact granting the request would have on the employer and how that effect might be dealt with.
- Employers will be obliged to consult with the employee and will not be able to refuse a request until they have done so.
One significant change is that the right to request flexible working will become a ‘day one’ right – meaning that employees will no longer need a minimum period of service before they are able to make a request. However, the ‘day one’ right is not explicitly stated in the Act. The government has announced that it will deal with this by introducing secondary legislation.
Is there really any meaningful change?
The changes appear to place more burden of dealing with a request on the employer. Managers will have to demonstrate more engagement and make decisions earlier. However, in reality the changes will make little practical difference to employers.
On its own, the Act is very unlikely to achieve some of the early aims expressed by the government, which have included making flexible working the default position, unless there is a good reason not to. As well as imposing a duty on employers to assess whether a job can be done flexibly and to make that clear at the stage the role is advertised.
Also, the Act does little to curb an employer’s ability to reject requests. As long requests are dealt with in a timely manner, it will still be very straightforward for employers to turn down employee’s requests.
Under the existing law, there is no right to work flexibly. There is only a right to make a request. This will remain the case in 2024. Whilst changes in the law will do little to enhance rights, the real change in approach to flexible working has come about as a result of lockdown and the pandemic.
Since the pandemic, there has been a cultural shift, and working flexibly is no longer seen as a perk, or reserved for those with childcare commitments – employers are having to proactively respond to the rising demand.
Why accommodate flexible working?
Prior to the pandemic, requests to work flexibly were usually made by women, often returning to work from maternity leave. Many employees feared that even making a request could be career ending. A vast number of employers merely engaged in the process as a tick box exercise, but the default position was to reject requests.
However, since the pandemic, flexible and hybrid working patterns have become fairly commonplace. More job vacancies are now advertised with flexible working options. Employers are acknowledging that in order to recruit and retain the best talent, they can no longer insist on staff working traditional hours and being onsite.
Employees have also benefited from gaining a work life balance, something they are unwilling to forgo. Employees, including an increasing number of men, have become more confident in requesting flexible working arrangements and millennials cite flexibility as a key factor when job hunting.
The lack of flexible working has hindered many from reaching their career potential. People have been driven out of the workforce or taken roles that are below their skill set – women have been disproportionately impacted. As such, embracing flexible working will encourage more women into the labour market and go some way to addressing gender disparity and retaining valuable talent.
Employers need to keep up with the strong demand for flexible working, in doing so they should consider the wider commercial picture as well as the cultural shift that has taken place.
Top five tips when dealing with flexible working requests
- As a minimum, comply with the Acas statutory Code of Practice on Handling Requests for Flexible Working (the Code). It should be noted that Acas will be updating the Code to reflect the changes to the law.
- Ensure you comply with your company’s own policy on Flexible Working, if one exists. Often, an employer’s own policy may include additional steps and provide enhanced rights and protections to employees. Failure to follow an internal policy may not always have legal consequences but can result in the breakdown of the relationship. As ignoring the company’s own procedure can signal to the employee that their request has not been dealt with fairly.
- Ensure requests are dealt with in a timely manner and that decisions, particularly rejections, are communicated clearly and in easy to understand language. Giving the employee an opportunity to discuss any concerns, once the decision has been communicated, can also help address any complaints before they arise.
- Remember, staff will talk to each other. Where possible, it’s very important to adopt a uniform approach when dealing with requests. Rejecting an employee’s request, when others in the same or similar role, have had requests granted, is likely to result in a grievance and could also make it difficult to justify the decision to reject the request. Ensure each request is considered carefully and decided on its facts.
- Be alert to any possible discrimination issues arising from the request. For example, an employee with a disability may need to work flexibly. The employer’s legal obligation to make ‘reasonable adjustments’ may be triggered. In dealing with such requests, the employer may be required to do a lot more than just follow the flexible working rules.
With both employers and employees increasingly recognising the benefits of flexible working, it is more important than ever to offer flexible working wherever possible, and respond to requests positively and creatively.
View more d&i Leaders articles
d&i Leaders is a global community of senior diversity, inclusion and HR focused professionals, looking to collaborate, network and accelerate their workplace inclusion strategy.