The Employment Relations (Flexible Working) Act 2023 received royal assent on 20th July and is due to come into effect next year. But do you know what the changes are and how they will affect you?
Whilst employers will have until July 2024 to review and update their flexible working policies and practices, the reality is that since the pandemic many companies have become very used to working with many different forms of flexible working, so the changes may not be such a major issue.
Whilst the final detail is yet to be published (there is likely to be secondary legislation as well as best practice guidance in the form of an ACAS code of practice) the basic premise is that the new Act does not change the basis for making (or refusing) a flexible working request, but it does change the process by which one is made and handled.
· allowing employees to make 2 (not 1) flexible working requests in any 12-month period
· the removal of the requirement that the employee must explain what effect the request would have on the business and how that might be dealt with
· a requirement for employers to respond within 2 months, ensuring decisions are reached more quickly and, with the aim of creating dialogue and compromise, to consult with the employee before refusing any request
Employers will need to update their policies to ensure these new entitlements are included and a transparent, accessible procedure is incorporated, especially in anticipation of the right to request flexible working from day 1 of employment, which is expected to be included in the secondary legislation.
Will this result in an increased demand for flexible arrangements, which include, for example, remote working, flexible hours and job sharing? Perhaps! But regardless of the volume, employers will need clear guidelines, backed up with training for line managers, to evaluate and prioritise requests fairly, whilst maintaining business efficiency.
There has been a recent trend, particularly among larger employers (e.g. ) who want to encourage and in some cases force employees back into the office. This new legislation potentially flies in the face of this trend by embracing flexible working.
However, employers can still refuse a request by citing one or more of 8 reasons (see below) so it remains to be seen what the impact of the new legislation will be in reality:
1. It will cost too much
2. They cannot reorganise the work among other staff
3. They cannot recruit more staff
4. There will be a negative effect on quality
5. There will be a negative effect on the business’ ability to meet customer demand
6. There will be a negative effect on performance
7. There is not enough work for the employee to do when they have asked to work
8. There are planned changes to the business, for example a reorganisation and the request will not fit with these plans
Be mindful that where flexible working requests are made by women for childcare reasons, there remains an additional risk of indirect discrimination claims where the requests are rejected.
· Update your flexible working policies to reflect that when making a request:
o An employee will no longer have to explain what effect the requested change would have on the employer
o Employees can make 2 requests (as opposed to 1) in any 12-month period
o An employer must consult with the employee before refusing a request, and
o The time for an employer to make a decision will be reduced to 2 months (from 3 months)
· The Act does not introduce a ‘day one’ right and the requirement for an employee to have 26 weeks’ continuous service remains, albeit the government has indicated that this will be removed by secondary legislation in due course
· Employers should be aware that where flexible working has been permitted, this can become an implied contractual term. Even if there is no flexible working request, if an employee is looking to ask an employer to change working patterns that have been in place for a period of time, that will need careful consideration and an appropriate consultation.
As ever, if you need help please don’t hesitate to get in touch.