An update on flexible working

20 years since flexible working provisions were first introduced into UK law, the landscape around flexible working has evolved to encompass a range of alternative working arrangements. In recent years, the Covid-19 pandemic highlighted for both employers and employees the benefits that flexible working can have. Indeed, for most employees a degree of flexible working has become the expectation. 

Flexible working is a broad term used to describe a range of practices employees can request to adapt their working arrangements. Examples include part-time working, term-time working, job-sharing, adjusting start and finish times, and compressed hours.

Research conducted by The Chartered Institute of Personnel and Development (CIPD) concluded that there is an unmet demand for varying types of flexible working. 6 per cent of employees changed their jobs last year specifically due to a lack of flexible working options. 12 per cent left their profession/sector altogether due to a lack of flexibility within the sector.  The much-anticipated Employment Relations (Flexible Working) Act 2023 (the "Act") received Royal Assent on 20 July 2023. It is expected that it will come into force some time in 2024. This article provides a summary of what the new legislation will mean for employers and how they can start to prepare.

Changes in the legislation

1. Statutory right to request flexible working from day one: now a matter for secondary legislation
   
   One of the most fundamental (and, as a result, widely reported) changes the new legislation was set to bring was to remove the 26-week qualifying period required before employees can make a statutory flexible working request. Instead, employees would be entitled to request it from day one of their employment.
   
   This has, in fact, been dropped from the Act, despite promises to the contrary (although it remains possible for employers to allow their employees to make informal flexible working requests outside of the statutory scheme: research shows that 39 per cent of organisations already offer a day-one right to request flexible working). The Government has said it will deal with the day-one request right through separate, secondary legislation, but no further information on this has yet been provided.
   
   
2.  Two requests
   
   Under the new legislation, employees will be able to make two requests for flexible working in any 12-month period instead of one.
   
   
3. Two months to respond
   
   Employers will have two months in which to respond to an employee’s request for flexible working rather than three months, unless agreed otherwise.
   
   
4. Consultation
   
   Employers must consult with employees before coming to a decision on their request to work flexibly, although the Act does not set out what form this consultation should take or how long it should last.
   
   
5. Explanation of potential impact
   
   Employees will no longer have to explain the impact that granting the request could have on their role and how that might be dealt with. The responsibility will fall on the employer to consider these points.
   
   

Changes to the Acas Code of Practice on handling flexible working requests

In addition to the above, Acas is updating its statutory Code of Practice on handling requests for flexible working, originally published in 2014, and has published a consultation document to gather views in preparation for this.

The consultation document is particularly keen to hear views on what guidance would be most beneficial for users on the “new and important requirement for consultation with an employee before a request can be rejected”. Acas is also updating its non-statutory guidance on flexible working, which sits alongside the Code of Practice.

What should employers be aware of?

Undoubtedly, attitudes towards flexible working have shifted in recent years. Whilst in almost all cases it is a priority for employees now, there are also some key advantages for employers too. For example, from the perspective of competitiveness within the recruitment market and employee retention. Research conducted by the International Workplace Group (IWG) found that 72 per cent of office workers would prefer long-term flexibility over where they work as opposed to a higher salary, while two thirds of those aged 25-34 would not consider applying for a new job unless it offered hybrid working.

The new legislation seeks to make the statutory flexible working regime more accessible and streamlined for employees, but it carries with it some additional considerations for employers.

As noted above, employers will have less time to come to a decision, and prior to that decision they will need to consult with the employee. The exact form that the consultation should take is not yet known, but employers can expect to have to discuss the request in greater detail than that which is currently necessary. Employers will also need to consider the potential impact, rather than initially relying on the employee’s analysis. This will, as a result, likely require greater management time in dealing with the requests, unless of course the request is accepted.

Employers will still be able to decline a request for one of the eight statutory reasons set out in the Employment Rights Act 1996, as set out below:

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, and
8. planned structural changes.
   
   

However, employers will be aware of the risks of refusing a request for flexible working, including grievances or even allegations of discrimination.

How can employers prepare?

Employers may find that the introduction of the new legislation leads to an increase in the number of requests to work flexibly (in addition to that which we have seen over recent years).

In our new post-pandemic world, many employers may already be undertaking the process as the intended legislation envisages and have provisions in place to accommodate flexible working requests from day one of employment, but any internal policies and procedures will need to be reviewed in light of the intended legislative changes.

For now, employers may wish to contribute to the Acas consultation mentioned above and await updates regarding the promised secondary legislation (there is no current reason to suggest it won’t be forthcoming). In addition, employers will be well advised to consider their current policies and flexible working arrangements and be cognisant of the impact and necessary changes this legislation will require to them (some may even wish to begin making changes in anticipation of this). On the horizon will be the consideration of whether internal decision makers would benefit from training on the changes.

With thanks to Tyrese Attefuah-Appau, a current legal intern in the Employment team, for his help in preparing this blog.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, August 2023