Laura Jennings from A City Law Firm explains what the new flexible working legislation means and how to go about getting the best outcome when you make a request.
The world has witnessed a real change in working environments post Covid and flexible and hybrid working has become the norm rather than the exception. Employers are adjusting, but there has been much change in a short time so it has been difficult for everyone to come to terms with what they can and can’t do and what they are entitled legally to. Now this has been formalised making it more transparent.
Employees across the UK will be able to seek greater work flexibility after the Employment Relations (Flexible Working) Bill achieved Royal Assent last month. The legislation, which was introduced by MP Yasmin Qureshi, seeks to give employees greater flexibility over when and where they work.
The new law which should come into force in 2024 makes some key changes. For example, currently an employee can only make one flexible working request, with an obligation on the employer to consider and consult with the employee if rejecting the request, although they can refuse.
After the new law takes effect, employees will have the ability to make two flexible working requests within any 12-month period. The employer’s decision period is currently three months, but, under the new legislation, this will be reduced to two months. Also, the requirement for employers to explain the impact on the organisation if the employee did change to flexible working will be removed. The eight statutory grounds for refusal, however, are to remain the same.
The controversial aspect was the expected introduction of day one flexible working requests, but this is not expressly stated in the legislation and instead is likely to be introduced in supporting secondary legislation. This has left some with the view that the new legislation does not go quite far enough yet. However, employers have been struggling with changes so many businesses see the delay as a beneficial period to adapt to the change.
Is there a need for change?
The pandemic and the shift in working styles and patterns has seen many employers recognise that spending from 9am to 5.30pm sat at a desk is not always the best use of employees’ time and flexibility and home working are not only achievable but can be as productive and lead to greater employee loyalty. There is a careful juggling act to consider both sides of the equation and the pressure on the business or other staff with reduced workers as well as consideration for those in roles that cannot offer this benefit.
Susan Clews, Acas chief executive, has been reported as saying there has been a “global shift and changed attitudes towards flexible working” and this has allowed more people to “better balance” their working lives. “ ACAS are now producing a new code of practice, to replace the current code and reflect the flexible working shift worldwide.
What does it mean in terms of employees?
As an employee and, particularly if you are, for example, a working parent, the new legislation increases the possibility of flexible working and makes it a more transparent and viable option. There will not be a day one right to request straight away but it may be in place when the secondary legislation is introduced. However, you do get two opportunities so if circumstances change you are no longer hindered from making a second application. This opens up many more opportunities for those with children, caring responsibilities or juggling studying.
Employers will need to take each request on a case-by-case basis and can still refuse a request based on the eight statutory reasons listed below:
1. The burden of additional costs
2. An inability to reorganise work amongst existing staff
3. An inability to recruit additional staff
4. A detrimental impact on quality
5. A detrimental impact on performance
6. Detrimental effect on ability to meet customer demand
7. Insufficient work for the periods the employee proposes to work
8. Planned structural changes to the business.
As such, whilst there are new and changing legal rights, a dialogue with your employer is always advisable to understand the business case for you both to find a workable solution.
What to consider when making a request?
The shift towards flexible working means that policies and training for those in management and HR will need to be updated and guided by the new legislation. Do check these and understand them before making your application so you can quote these accordingly. Document the process and keep copies of everything provided to assist you in future requests. Think of this as a business proposal – for instance, consider why it will increase productivity or how it will not negatively impact the business and what is in it for your employer. This will strengthen your argument.
What do employers need to consider?
Employers should be giving training to all those involved in the process around the right to request, including HR and line managers within organisations. Employers may wish to take steps to prepare updated flexible working policies so as to be ready to go when the new legislation takes effect. Understanding the law, applying processes and updating contracts and handbooks is just one aspect. Working out what the business can achieve and how it can be structured and communicating this with employees will enable a solid and committed workforce.