28 February 2024
From 6th April 2024, The Employment Relations (Flexible Working) Act 2023 will come into force with new flexible working regulations coming into effect. Noel Deans, Partner in the Employment team, outlines the key changes.
The new regulations incorporate a broader definition of flexible working; the traditional flexible arrangements, such as part-time work and job-sharing, remain valid, with provisions for hybrid working and reduced hours being included. They also extend the right to request flexible working arrangements to all employees, removing the previous limitations based on tenure or parental status.
The updated legislation aims to focus on setting the right conditions so that employees and employers can have an open-minded conversation about what flexible working arrangements might be possible in any given context, allowing all employees to request changes to their work arrangements and requiring employers to properly consider those requests, although they do not have to necessarily agree to them.
The headlines of the new regulations are:
Day one right
Employees will have the right to request flexible working from day 1 of their employment.
Previously 26 week’s service was required before making a request.
Two month response time
Employers need to respond to each request within two months.
Previously this was three months.
Two requests in 12 month period
Employees will be able to make a second flexible working request within any 12-month period.
Previously this was one request per 12 months.
However an employee may have only one ‘live’ request for flexible working with their employer at any one time. Once a request has been made, it remains live until:
– A decision about the request is made by the employer.
– The request is withdrawn.
– An outcome is mutually agreed.
– The statutory two-month period for deciding requests ends.
– A request continues to be live during any appeal or any extension to the statutory two-month decision period that an employer and employee may have agreed.
Employers must consult with employees
Unless the employer decides to agree to the employee’s written request in full, they must consult the employee before they make a decision. In such cases, the employer should invite the employee to a consultation meeting to discuss the request. This duty aims to prevent employers from defaulting to ‘no’ without first engaging with the employee when responding to individual requests.
Employees no longer need to explain effect of changes
The new regulations remove the requirement for employees to explain what effect the change applied for would have on the employer and how that effect might be dealt with. However, a request must be in writing and state that it is a statutory request for flexible working, and include:
– The date of the request.
– The change the employee is requesting to the terms and conditions of their employment in relation to their hours, times or place of work.
– The date the employee would like the change to come into effect.
Effectively and fairly dealing with a request for flexible working
It is crucial for employers to engage in a reasonable and timely manner when considering flexible working requests. It is important to maintain transparent communication with employees throughout the process, providing clear reasons for accepting or rejecting a request.
In handling a request, and any information that the employee discloses as part of that request, employers must not discriminate unlawfully against the employee in relation to any of the protected characteristics set out in the Equality Act 2010. The nine protected characteristics are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.
Employers will retain the ability to refuse such requests based on specific grounds. A decision to reject a request must be for one or more of the following business reasons:
– The burden of additional costs.
– An inability to reorganise work amongst existing staff.
– An inability to recruit additional staff.
– A detrimental impact on quality.
– A detrimental impact on performance.
– A detrimental effect on ability to meet customer demand.
– Insufficient work available for the periods the employee proposes to work.
– Planned structural changes to the employer’s business.
How Blaser Mills Law can help
As the UK adopts new flexible working rules it is important to stay informed on the expanded eligibility criteria, diverse types of flexible working, and the considerations surrounding these arrangements.
Blaser Mills Law recommends that employers review their contracts of employment and flexible working policies and procedures to ensure that they are compliant with the new flexible working rules. If you would like access to advice or need further guidance on flexible working, please contact the Employment Team at Blaser Mills Law on 020 3814 2020 or email enquiries@blasermillslaw.co.uk.