The Employment Relations (Flexible Working) Act 2023 came into force on April 6th following a lengthy period of consultation.
The changes are intended to enable more people to request flexible working, in particular earlier on in their employment as it becomes a day one right. It is anticipated that this will assist those with family responsibilities, caregiving duties, and health conditions enabling a better work/life balance.
Why did the changes comes about?
Radio presenter and host of the Dirty Mother Pukka podcast, Anna Whitehouse, set up the flexible working campaign Flex Appeal in 2015 to lobby the government for fairer flexible working rights after her own negative experience of returning to work after becoming a parent.
The initiative found that although employees have had the ability to ask their employer for flexible working since 2014, nearly nine million people reported that they were not given the opportunity to work flexibly.
It also highlighted how the working week had evolved over the years and that not every person could fit their lives into a linear 9 to 5 pattern. Also, that women, who have traditionally taken on more childcare responsibilities in the early years of parenthood, were being pushed out of the workplace or were missing out on career progression opportunities, simply because the flexibility to raise a family alongside maintaining a career wasn’t there.
The campaign caught the attention of government, and at the beginning of December 2022 the Department for Business, Education and Industrial Strategy published its response to its 2021 consultation on flexible working. The resulting Flexible Working (Amendment) Regulations 2023 gained royal assent in July 2023 before becoming law in April 2024.
What are the changes to flexible working?
Here we delve into the reasons behind these changes and their practical implications:
Then:
Previously, employees were required to have been employed continuously for 26 weeks before being eligible to request flexible working.
Now:
As of 6 April 2024, under the Flexible Working (Amendment) Regulations 2023, this has become a day one right meaning that an employee can request a change to their working pattern at the very outset of their employment. It is important to note that this is a right to request flexible working, not an automatic right for the request to be granted.
Then:
As part of their request, an employee was required to explain to the employer what effect their request would have on them and how the effect could be mitigated.
Now:
This requirement has been repealed and an employee is no longer required to explain what effect their request would have, or how the employer may mitigate it. However, the new Act encourages joint engagement between employers and employees to assess the impact on the business.
Then:
An employee was allowed to make one request in a 12 month period.
Now:
An employee is allowed to make up to two requests in a 12 month period.
Then:
An employer had up to three months to deal with the request and make a decision (which included time to deal with any appeal).
Now:
This period has been reduced to two months.
The reasons for refusing a request, as set out in statute, remains unchanged. These are:
- The burden of additional costs
- Inability to reorganise work amongst existing staff
- Inability to recruit additional staff
- Detrimental impact on quality
- Detrimental impact on performance
- Detrimental effect on ability to meet customer demand
- Insufficient work for the periods the employee proposes to work
- Planned structural changes to the business
In addition, under the new Act employers must consult with employees and explore alternatives before turning down a flexible working request. In practice, many savvy employers would have done this already.
What is meant by flexible working?
Flexible working will look differently for everyone but typically includes requests to change:
- the number of hours an employee works
- an employee’s start or finish time
- the days an employee works
- the location the employee works
If granted, then the change becomes a permanent change to the terms and conditions of employment.
Rejecting a flexible working request
The new legislation does not specifically give employees the right of appeal, however the ACAS Code of Practice states that the refusal of a request should clearly explain the business reason why the request has been rejected and provide any additional information to the employee to help explain how the decision has been reached. The code further states that an employee should be allowed to appeal.
Employees have the option to lodge a complaint with an Employment Tribunal under the following circumstances:
- If an employer fails to deal with a request in a reasonable manner
- If an employee’s application is wrongly treated as withdrawn
- If an employee faces negative consequences due to the flexible working request, such as the denial of a promotion or pay rise
- If a request is turned down based on incorrect information
Complaints to the Tribunal should be made within 3 months of:
- Receiving the employer’s decision on the application or appeal
- Being informed that the request was considered withdrawn
- The deadline by which the employer should have responded to the request (if no response was received).
It is often said that the Flexible Working Regulations are toothless because the Employment Tribunal’s role and powers are limited in relation to flexible working requests, however this fails to take into account the interaction between flexible working and other statutory protections. For example, women who are refused flexible working requests may have a more effective remedy by bringing claims for sexual discrimination.
What will the likely impact be?
The changes may prompt more employees to seek flexible working arrangements sooner.
Employers are advised to consult employment lawyers and update their policies and procedures to ensure they are handling such matters compliantly and fairly under the new regulations.
Should you require any assistance or guidance on the implementation of the Employment Relations (Flexible Working) Act 2023, please contact the dedicated employment law team at Buckles for a confidential, impartial advice.
