Concept for flexible working

More of us than ever before work in a way that is different to the usual 9-5 in the office and there seems no sign of that changing. In line with this shift, the Government embraced the momentum for change, and from April 2024 new legislation allowing for increased rights on flexible working requests is due to come into effect.

After years of campaigning by many people who make the case for more flexible approaches at work, this news was widely celebrated. But how much is actually changing, and when? And how can you as an employer embrace that change as something with positives and benefits for you and your employees?

You can read more in our article about how the current flexible working regime works but it’s now clear that change is coming in 2024 (more details below!).

Flexible working regime – what’s changing?

There are some key differences in how the new regime will work when section 1 of the Employment Relations (Flexible Working) Act 2023 comes into force:

  • The right will apply from day one of employment, something 91% of respondents were in favour of. Currently, an employee needs to have 26 weeks’ continuous employment to be able to use the statutory regime. This new ‘day one right’ is provided for through secondary legislation (The Flexible Working (Amendment) Regulations 2023), which will come into force on 6 April 2024.
  • Employees will be able to make two requests in each 12-month period. Previously, they were limited to one. It won’t however be possible to make the second application while the first is already proceeding.
  • Employers will have a window of two months to respond to the request, decreasing from the current three months. Like now, the two parties can agree a longer period if they wish.
  • Employers will be required to consult with employees about their request – an employer will not be permitted to refuse a request unless the employee has been consulted. Quite what this obligation will look like in practice isn’t clear, as the new legislation doesn’t set out a minimum requirement. Acas undertook a consultation on an updated statutory Code of Practice, which closed on 6 September 2023 and the responses are still being processed. It’s likely to mean however that if you reject a request, you will need to be able to show that you have considered whether there would have been alternative forms of flexibility available. We’ll update further once a new Code is in place.
  • Employees will no longer be required, as part of their request, to set out how their flexible working request might impact their employer. The intention is that this should be part of the collaborative discussion between employer and employee.

Flexible working regime – what remains the same?

  • The right remains a right to request flexible working only; it is not a right to work flexibly.
  • The grounds on which an employer can rely to reject a request remain the same (these are set out in our previous article referenced above). A significant proportion of individual respondents to the consultation did not believe that these statutory reasons remain valid but of the employer and business responses, 63% felt the list was still appropriate.
  • Employees will still be required to comply with the other formalities around making a request, for example, making the request in writing and stating expressly that it is made under the flexible working legislation.
  • There is no change to the position on appeals. Employers are not currently required but are recommended (by the existing Acas Code of Practice) to offer an appeal, and we don’t expect that to change.

When is this going to happen?

The Flexible Working (Amendment) Regulations 2023 are coming into effect on 6 April 2024, which means from that date employees will have the right to make a flexible working request applies from day one of their employment. It is anticipated the Act which gives effect to the other new flexible working rules changes may come into effect on or around the same date. Although originally the Government had indicated the new Act may come into force around a year from the Bill gaining Royal Assent, so around July 2024. What is clear, is this new way of working is not far off.

We are also expecting the updated Code of Practice to be published shortly, which employers should take into account and apply to the new flexible working statutory regime.

All of that said, there’s no reason to wait and being seen to be ahead of the game on making these changes to your approach and policy would send a strong message to your employees.

What are the implications for you as an employer?

Probably none of us can imagine a world where we go back to the more rigid ways of working many of us had before the pandemic. The perception of flexible working has changed forever but there remains a balance to be struck for organisations between the undoubted benefits flexibility can bring for employees and the potential impact for employers of having a more disparate workforce. We know that the degree to which flexible working can be accommodated will depend on individual roles and wider organisation or customer needs. There may well be concern in some quarters that in what already feels like an employee’s market, this will put yet further weight in employees’ favour.

However, we believe that this is a positive and welcome step and work with many employers who already operate flexible working policies reflective of the new law. We always encourage employers to consider carefully  how they design and advertise vacancies and the ability to request flexible working from day one will have a key impact on that. Employers who are willing to be open and receptive to different ways of working are putting themselves in a better place in the marketplace, which may well ultimately lead to more effective and productive recruitment and possibly also greater staff retention.

It might be that no-one in your organisation has ever worked in a particular way before but perhaps that’s just because nobody has asked. There might be positive outcomes from it which even the person now requesting the change might not have thought of. Being open to accommodating alternative working patterns and having an engaged discussion about them with your employees will drive positive attitudes towards you as an employer and, in turn, reduce the number of issues being managed.

When it comes to existing employees, though employers can still pick from a fairly broad list to reject a request, the consultation response highlights the importance of quality collaborative discussions about how flexible working can be adopted. This does require managers to have the confidence and training both to consider requests and to manage them in practice, something which is often overlooked. Managing a remote and disparate workforce is very different from face-to-face daily line management but can reap huge benefits for both employers and employees. Concerns about productivity or efficiency dropping with a remote workforce have repeatedly been shown to be unfounded, provided those teams are well managed, engagement levels for individuals who are able to adapt when or where they work often increase too.

The ability for employees to make more than one request in a 12-month period stems, in part, from an acknowledgment that circumstances can change dramatically in that period. There is a risk that this will increase the HR and administrative burden on employers, particularly when combined with the shorter timeframe for dealing with requests. However, as flexible working becomes more the ‘norm’, it could also be argued that in practice, employers may well become more able and therefore quicker at handling these potential changes to employees’ working patterns. Indeed, if individuals are recruited on more flexible working arrangements, the need for formal specific requests may not even arise.

Where the right balance can be achieved, evidence shows that employers are likely to see greater levels of productivity, attendance and engagement. It might take some trial and error to get to the right mix but it’s something all organisations are going to need to work with or else start standing out as a reminder of how we used to work.

We frequently work with our employer clients when they receive flexible working requests so if you require any support or advice with this, please get in touch with our Employment Law team.