What are the key changes to flexible working? Understanding the cultural shift

New flexible working rules have recently been given the go ahead. The Employment Relations (Flexible Working) Act 2023 has Royal Assent and is likely to come into force next year.

Employees already have the right to ask for various of their terms and conditions of employment to be changed including terms relating to hours, working times and place of work. If the request is granted by the employer, the changes to the employee’s contract terms are permanent. The new legislation builds on this.

Flexible working has increased in recent years. New laws were sponsored by Yasmin Qureshi and Baroness Taylor of Bolton. They come at a time when the labour market is tight and yet post pandemic some 1/2M individuals of working age are regarded as economically inactive having left the labour market.

The bill was welcomed by the BCC and by trade unions as making flexible working available to more people. It has been regarded as another meaningful step to help employers and employees agree ways to balance work and personal lives and find ways to help people stay at work and progress in their work. The ONS has recently published data showing that the ability to work flexibly helps individuals to stay in the labour market potentially boosting motivation, engagement and staff retention. The ability to work flexibly underpins the ability for women (and men) to continue to work whilst raising children.

The new rules are an extension of the flexible working rules which first came into force twenty years ago allowing employed parents, guardians and certain carers with 26 or more weeks service the legal right to request flexible working. Since then, carers of adults and also children under 17 have had the right extended to them and in 2014 the right to request flexible working was extended to all employees who have 26 weeks or more continuous service with their employer.

There are four key changes. What they don’t do however is to make the right to request flexible working a day-1 right. Although this limitation will come as a disappointment to many, some employers would already entertain an informal flexible working request from day-1 of employment.

The four key changes are:

1. Employers must now consult with employees before declining a flexible working request. However, there is no definition in this legislation of what “consultation” means. In other contexts, such as redundancy, it means giving the individual being consulted a fair and proper opportunity to understand matters and to express views and considering those views properly and genuinely.
2. Rather than being limited to making just one request for flexible working in any 12 month period the employee may in future make two formal requests in that timeframe. Although the ACAS Code of Practise on Flexible working recommends employers giving a right of appeal to an employee if their request is turned down, there is no right of appeal built into the new rules – perhaps because the employee will have the option of making a follow up second application. The ability to make two requests may assist those whose caring responsibilities for example, have changed soon after making their first request.
3. Employers must respond to and administer the request process within a shorter timeframe of two months rather than three months. This enables employees to receive a decision more quickly and potentially help them to better plan any care arrangements.
4. There will be no requirement for the employee to explain the anticipated impact of the request on the employer. This removes a requirement that was regarded by many as unduly burdensome on employees. However the eight reasons an employer can refer to as reasons to reject the request remain in place.

Flexible working is popular among workers. Many employers and their workforces are benefitting by implementing flexible working which represents a strong cultural shift also supporting inclusion at work.

If you would like an updated flexible working policy or advice on implementing flexible working please don’t hesitate to contact Joan Pettingill, Employment Partner. You can read more about her practice or contact her here.