Flexible working changes in force

Tomorrow (6 April 2024), the Employment Relations (Flexible Working) Act 2023 will come fully into force, which amends the Employment Rights Act 1996 and as a result, makes changes to employees' rights to ask for flexible working.

The Flexible Working (Amendment) Regulations SI 2023/1328 also comes into force on 6 April 2024, which amends the Flexible Working Regulations SI 2014/1398, to make flexible working a day-one right.

These pieces of legislation extend to England, Scotland and Wales, and are designed to open up better access to flexible working.

What is flexible working?

There are different ways to work flexibly, including:

• job sharing: two people doing one job and splitting the hours;
• remote working and working from home: working from anywhere other than the employee's usual workplace;
• hybrid working: a combination of working remotely and working in the employee's usual workplace;
• part time: working less than full-time hours, usually by working fewer days;
• compressed hours: working full-time hours but over fewer days, for example a nine-day fortnight;
• flexitime: the employee chooses when to start and end work within agreed limits but works certain "core hours", for example 10am to 4pm every day;
• annualised hours: the employee has to work a certain number of hours over the year but they have some flexibility about when they work;
• staggered hours: the employee has a different start, finish and break times from other workers;
• phased retirement: default retirement age has been phased out and older workers can choose when they want to retire, which means they can reduce their hours and work part time.

Is flexible working important?

According to the Timewise Flexible Jobs Index, only 31% of jobs included a mention of part-time or flexible working options in 2023. Advertising roles at the outset can help to promote your organisation as an inclusive employer.

The benefits of allowing employees more autonomy over their working arrangements include:

• greater engagement;
• better work-life balance; and
• lower stress.

Employees who work flexibly are less likely to take time off work for childcare or mental health issues.

The Chartered Institute of Personnel and Development (CIPD) estimates that around four million people have changed careers because of a lack of flexibility at work. Allowing employees to work flexibly can help organisations narrow the gender pay and pensions gap.

According to the Fawcett Society 40% of women who are currently not working said access to flexible work would mean they could take on more paid work. 77% of women agreed they would be more likely to apply for a job that advertised flexible working options.

Nevertheless, a recent study by HR recruitment company Wade Mcdonald showed that although 88% of workers consider flexible working to be a valuable benefit, the perception is that it is more likely to be granted to management.

What are the flexible working changes?

The provisions of the Flexible Working (Amendment) Regulations SI 2023/1328 and the Employment Relations (Flexible Working) Act 2023 that will come into force, removes the requirement for an employee to have 26 weeks' continuous service before they can make a formal flexible working request. This means the right to request flexible working becomes a "day-one right".

Employees will also be able to make two flexible working requests every 12 months, which used to be one request every 12 months. The amount of time employers have to deal with flexible working requests has also reduced from three to two months, although this can be extended if the employer and employee agree to that.

Employers must also consult with an employee before refusing a request, but employees do not need to explain or justify the impact of the proposed change on their working arrangements.

ACAS have published a Code of Practice on Flexible Working that also comes into effect tomorrow.

What does this mean for employers?

Employers have to deal with flexible working requests within two months of the request being made and must consult with the employee before deciding on a request.

Employers can reject an application for any of the following reasons:

• burden of additional costs;
• detrimental effect on ability to meet customer demand;
• inability to re-organise work among existing staff or recruit additional staff;
• detrimental impact on quality or performance;
• insufficiency of work during the periods the employee proposes to work;
• planned structural changes; and
• other grounds the Secretary of State may specify by regulations.

An employer can refuse an application if they have a good business reason to do so. They must offer concrete evidence to support the reason for refusal.

Employers must deal with requests in a "reasonable manner", examples of which include:

• assessing the advantages and disadvantages of the application;
• holding a meeting to discuss the request with the employee;
• offering an appeal process;
• offering a trial period to see how the flexible working arrangements works, this offers both employer and employee the chance to review the arrangements in practice.

If an employer does not handle a request in a reasonable manner, the employee can take them to an employment tribunal.

Employers should look at their current policies around flexible working and ensure they reflect the new law, in particular with relation to the length of service required.

Training managers on the new rights will be essential, as employees must now be consulted before their request is refused. Managers should also be made aware of the shorter time frame in which to consider a request.

What is next?

Important steps forward have been made through these pieces of legislation, but the CIPD said there is still more that can be done to improve UK employment law.

Both main UK political parties have pledged more comprehensive employment legislation in recent years. CIPD have made a number of further calls on policy-makers in their Manifesto for Good Work, including calls for a new single enforcement body to improve the protection of worker's health and rights which would:

• have a strong focus on supporting and improving employer compliance with the law; and
• raising overall employment standards.

Some lawyers have suggested the flexible working law changes will have limited impact. Caroline Philipps, Senior Associate at Fladgate, said: "The new legislation arguably has relatively little impact in practice, especially as no minimum standard of consultation has been specified".

"The changes do place more of the burden of dealing with a flexible working request on the employer, who is going to have to evidence more engagement and make decisions quicker. An employer’s scope for refusing requests hasn’t otherwise changed".