Is your organisation ready for the changes to flexible working?

In July 2023, The Employment Relations (Flexible Working) Act 2023 (‘the Act’) received Royal Assent. The Act is expected to come into force in the summer of 2024 – around a year after it received Royal Assent – in order to give employers time to prepare and adapt.

What are the key changes to be introduced?

1. Number of requests – employees will be able to make two requests (increased from one request in the current legislation) in any 12-month period.
2. No requirement for employee to explain the impact of their request – the Act will remove the requirement for an employee to explain how they think their flexible working request will impact the employer, and how they suggest this impact is minimised.
3. Compulsory consultation – employers must consult with an employee before rejecting their request.
4. Timing of decision – employers must provide a response within two months of the request (reduced from three months in the current legislation) unless a longer time period is agreed by both parties in writing.

The change which has been grabbing headlines – that the right to request flexible working will become a ‘day 1′ right – will not be introduced by the Act. However, the government has indicated that it will introduce secondary legislation which will remove the current requirement to have 26 weeks’ continuous employment before making a request. It is not yet clear when this might be enacted.

Will there be additional guidance for employers?

Acas is currently consulting on an updated statutory Code of Practice on flexible working arrangements. Acknowledging that there has been a significant change in perception of flexible working (due, in part, to the change in ways of working and the Covid-19 pandemic), coupled with the changes to be introduced by the Act, the aim is to bring the Code of Practice in line with current best practice and ensure it is relevant and helpful for today’s workplaces. The updated Code seeks to encourage a more positive approach to flexible working, with an emphasis on fostering an environment in which requests are not rejected by default without open-minded consideration and meaningful dialogue. The consultation is open until 6 September 2023.

What can employers be doing now to help prepare for the changes?

Within the next year, it would be sensible to carry out the following:

• Review policies – start reviewing your current flexible working policy or look at introducing one if you don’t yet have a policy in place. You may wish to set out a specific procedure to be followed, which should include sufficient consultation with the employee (we would recommend at least one meeting) and should account for the new timeframe for responding to requests. Although the Acas Code of Practice is in draft form, it contains some very helpful guidance and could be a good starting point.
• Update managers – once your policy is finalised, ensure decision-makers are familiar with it. This is a good opportunity to refresh memories on how to deal with a flexible working request (with a particular focus on discrimination risks) and update managers on the new requirements.
• Take a positive approach – the Acas Code of Practice focuses on a more collaborative and positive approach. Dealing with requests transparently and engaging in meaningful dialogue with the employee who has made the request can not only reduce legal risk, but also help promote a more supportive working environment.
• Consider flexibility at the recruitment phase – advertising flexible working options in job adverts and discussing it at an interview could increase your talent pool and also provide an opportunity to discuss and agree a suitable working pattern from the outset. This provides certainty for both parties and prevents a situation whereby an employer agrees a contractual arrangement with an employee, only for the employee to request a different working pattern as soon as they start work.
• Be prepared for an increase in requests – not only will more employees be eligible to make requests, but those who are eligible will be able to make more requests. You should start thinking about how you will deal with an increase in requests. For example, a detailed policy, with step-by-step guidance on the relevant considerations, plus a set of precedent letters/documents, could save significant time once requests start being received. You may also need to consider whether additional resource is required to meet demand.

Concluding thoughts

It’s important to remember that the Act will only grant employees the right to request flexible working: there is no entitlement to have that request granted. However, with the government estimating that these changes will bring an additional 2.2 million workers within the flexible working regime, there is no doubt that there will be increased pressure on employers to deal with requests fairly and consistently. Although a failure to follow the statutory procedure can be redressed by way of a standalone tribunal claim, the reputational and financial risks significantly increase when there is a discrimination angle. Becoming familiar with the new regime and making adaptations now should put your organisation in a much better position to embrace next summer’s changes.

If you would like to discuss the upcoming changes, or have any other employment law related queries, please do not hesitate to contact Rachael Lloyd.

Author

Rachael Lloyd