Flexible Working Arrangements: What is changing?

Since its introduction in April 2003, flexible working has become increasingly common in the UK with around 4.3 million employees working flexibly according to the 2022 survey by Statista.

Earlier this year, the Employment Relations (Flexible Working Act) 2023 passed through Parliament and is likely to pass into law in 2024. What this means is that alongside existing obligation, the changes to current practice that the Flexible Working Act will introduce, will become legally binding for all employers in the coming months. There are actions to be taken now, in preparation for the changes becoming law, that every employer should be taking.

It is important to note, that whilst some things are changing, others are staying the same. This communication set outs what is changing and what is staying as it was before.

What will remain unchanged?

• Under the Employment Relations (Flexible Working Act) 2023:
• The right to make a flexible working request will not be a ‘day one right’.
  Employees still need to have 26 week’s service before they have the right to make a request.
• Whilst a ‘day one right’ may be introduced later through secondary legislation, it is not part of this Act.
  • There remains a ‘right to request, not a right to have flexible working’
    The eight statutory business grounds on which an employer is entitled to refuse a flexible working request, will remain, these are:
  • planned structural changes
  • burden of additional costs
  • quality or standards will suffer
  • performance will suffer
  • recruitment of additional staff is not possible
  • work cannot be reorganised among existing staff
  • meeting customer demand will be more difficult
  • lack of work during times the employee requests to work
• employers still do not have to offer a right of appeal if a flexible working request is rejected, although the ACAS Code of Practice on Flexible Working recommends a right of appeal is offered by employers.
• There is no requirement that consultation with the employee is substantive or covers the options available; there is no minimum standard of consultation.

What will change?

• Once this Act comes into force the following changes will take effect:
• Instead of the employee only being allowed to make one flexible working request in a 12-month period they will have the right under the new Act to make two flexible working requests in any 12-month period.
• Instead of dealing with a flexible working request within 3 months of receipt, employers will now only have 2 months to process and communicate the outcome of a flexible working request to an employee, unless they have agreed to an extension.
• Employers are required to ‘consult’ with employees before refusing a flexible working request.
  • However, what consultation must include and how rigorous it should be is not set out in the legislation (see above for what is not changing).
• Employees will no longer have to set out in their flexible working request the impact any change they request will have on the business or how any negative effects can be mitigated.

 

What does that mean for you?

It would be prudent for you to familiarise yourself and train your managers, your HR team and any other relevant employees on the new obligations under the Act and to refresh current practices relating to managing flexible working requests. At Kingswood Group we would be happy to run a workshop for your teams on best practice for managing flexible working requests which will incorporate the new legislative changes.

You will also need to update your flexible working policy if you have one in place. Our expert HR Consultants at Kingswood Group can help you with updating your flexible working policy or, if you have no policy in place now, they can draft one that will be fully legally compliant and will be specific to your business.

Why take action now?

Under the Act, more flexible working requests are likely to be made, so you will need to ensure that you are ready for it. You need to ensure not only do you have the right policies and procedures in place, but your leaders and managers are trained ensuring they make consistent and non-discriminatory decisions when dealing with flexible work requests. It is essential that where a flexible working request is rejected, the business has the full back up of documentation and data to justify the decision.

If you would like support, training, or guidance with how to manage flexible working and the imminent changes, our team of expert HR consultants are on standby to help. You can contact us on 01245-204450 or email us on HR@kingswoodgroup.org