Flexible working is now the norm for many employers and employees alike. With Covid lockdowns forcing many employees to work remotely, businesses across the world adapted and innovated to adjust to the new working environment. The UK has been somewhat of a global leader in this area, with a recent study showing that the UK has the highest rate of remote working in Europe.
Many have called for an expansion of the right to work flexibly, with the UK Parliament responding by passing the Employment Relations (Flexible Working) Bill on the 14th July. It received royal assent, making it an act, on the 20th July. Lisa’s Law has long been a champion of flexible working, with many of our staff working from home either full time or on a hybrid basis.
But what does this piece of legislation mean for flexible working rights? How will it affect employers and employees? And will it be possible to request flexible working from day one of employment? Keep reading to find out.
What is meant by flexible working?
Many people might purely associate flexible working with working from home, however it also covers a range of other types of working patterns. Namely, flexible working in the UK relates to the following:
- Job sharing
- Part time
- Work from home
- Compressed hours
- Flexitime
- Annualised hours
- Staggered hours
- Phased retirement
The above facets of flexible working reflect how it can appeal to a range of individuals, including some who can sometimes be marginalised in the workplace such as carers, parents, disabled people and more. Flexible working ensures that a company’s employment policies are flexible and inclusive,. It can also help to attract employment talent to their business.
What changes does the Employment Relations (Flexible Working) Act 2023 bring?
The main features of the legislation include the following:
- New requirements for employers to consult with the employee before rejecting their flexible working request.
- Permission to make two statutory requests in any 12-month period (rather than the current one request).
- Reduced waiting times for decisions to be made (within which an employer administers the statutory request) from three months to two months.
- The removal of existing requirements that the employee must explain what effect, if any, the change applied for would have on the employer and how that effect might be dealt with.
While the government stated that the legislation would also include the right to request flexible working from day one of employment, this is not explicitly stated in the legislation. For now, employees will still have to have completed 26 weeks continuous employment before requesting flexible working from their employer. The government have suggested that the right to request flexible working from day one may feature in secondary legislation, however this remains to be seen.
While there are some significant changes to employer-employee relations, particularly increasing the number of opportunities an employee is allowed to request flexible working per year, employers can still rely on the same reasons they could before to reject a flexible working request.
What doesn’t change with the new legislation?
The new legislation does not make flexible working the default position for employees and employers alike, much to the chagrin of campaigners. Employers will therefore still be able to rely on the following reasons to reject a flexible working request:
- flexible working will affect performance and quality of work;
- the work cannot be reorganised among other staff;
- extra costs that will damage the business;
- people cannot be recruited to do the work;
- it will negatively impact the ability to meet customer demand;
- there is a lack of work to do during the time the employee has requested to work; or
- the business is planning changes to the workforce and the request will not fit with these plans.
Despite the range of reasons employers can still use to reject a flexible working request, many advocates will still welcome the progress made.
The Advisory, Conciliation and Arbitration Service (ACAS), a non-departmental public body, has also launched an 8-week consultation period to update its code of practice for dealing with flexible working requests. ACAS’s pro flexible working stance provides an important ally for proponents of flexible working, with the organisation’s role as the leading body for providing advice to employers on employment law and workplace relations. ACAS consultation on the new code of practice closes on 6 September 2023. We await to update you on the new changes following its completion.
Our thoughts
We welcome this new legislation, which evolves an outdated flexible work application process and given employees more control over their own working patterns. Nevertheless, it does have its limitations, and is not the game-changer that many proponents of flexible working were originally hoping for. The absence of the right to request day one flexible working is particularly apparent, especially after the government included it in their initial plans last year.
On the face of it, the changes may not appear to be to the benefit of employers. However, it is worth bearing in mind that the Act expands the employment pool available to businesses, which is an important factor considering the UK’s tight labour market. Anything that expands the employment market is therefore to the advantage of businesses in the UK.
Flexible working from day one is something which may still be around the corner. As mentioned, it may be introduced by the government in secondary legislation. Furthermore, the prospect of the Labour Party coming to power within the next year is now a distinct possibility and the party have made the specific commitment for day one workers’ rights if they get into government. It is encouraging to see that there is a cross-party consensus for making flexible working more prevalent.
There is no formal introduction date for the new legislation, however employers should be aware of the changes and ensure that their policies are updated in line with the legislation. If you have any questions about the topics discussed within this article, such as employment law or workers’ rights, contact us today and we will be happy to help.
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