Changes to employees’ rights to ask for flexible working are due to come into force on 6 April 2024 when the Employment Relations (Flexible Working) Act 2023 becomes law. We look at how flexible working legislation is changing.
The new flexible working act gained Royal Assent last July, and is designed to open up better access to flexible working, including making it a day-one right.
Many employers already allow staff the right to request flexible working from their first day of employment – research from the CIPD last year found that 14% offered this before the legislation took effect.
However, employees’ awareness of their new rights is relatively low. Conciliation service Acas recently revealed that seven in 10 employees did not know they have access to this flexible working right from April.
The flexible working law changes come into force alongside a raft of other family-friendly rights, including an extension of the redundancy protection period for employees on maternity, adoption or shared parental leave, and the Carer’s Leave Act, which provides employees with caring responsibilities up to a week of unpaid leave each year.
What are the flexible working changes in 2024?
The new flexible working legislation removes the requirement for an employee to have 26 weeks’ continuous service before they can make a formal flexible working request. This means the right to request flexible working becomes a ‘day-one’ right.
Employees will also be able to make two flexible working requests every 12 months, a change from the current single request. The Act will reduce the time limit for employers to deal with flexible working requests from three to two months, although this can be extended if the employee agrees.
Flexible working legislation
Flexible working bill achieves Royal Assent
Employers must consult with an employee before refusing a request, and the new legislation will remove the need for employees to explain or justify the impact of the proposed change to their working arrangements.
Acas has drafted a new code of practice on how employers should handle flexible working requests once the new changes have taken effect, but this remains under consultation. A new code will come into effect alongside the legislation in April.
How should we define flexible working?
Since the pandemic and the raft of virtual working that followed, many employees now choose to work in a different way to the traditional Monday to Friday, 9 to 5 in an office.
According to Acas, flexible working is a broad term used to describe an arrangement that meets the need “of both the employee and the employer” as to when, where and how someone works.
This could include: part-time working, home working, hybrid working, flexitime, job sharing, compressed hours, annualised hours, term-time working and team-based rostering.
The Flexible Working (Amendment) Regulations 2023, which come into force on 6 April 2024, extend to England, Scotland and Wales and update the Flexible Working Regulations 2014 by removing the requirement for an employee to be continuously employed for at least 26 weeks to make a flexible working application.
Why should we promote and encourage flexible working?
According to the Timewise Flexible Jobs Index, only 31% of jobs included a mention of part-time or flexible working options in 2023. Advertising roles as flexible at the outset can help to promote your organisation as an inclusive employer.
The benefits of allowing employees more autonomy over their working arrangements are well-documented, such as greater engagement, better work-life balance, and lower stress. Employees who work flexibly are less likely to take time off work for childcare issues or mental health issues, for example.
There are also risks to not offering flexible working options. The CIPD estimates that around 4 million people have changed careers because of a lack of flexibility at work.
Enabling employees to work flexibly can help organisations narrow the gender pay and pensions gap.
According to the Fawcett Society, 40% of women who are currently not working said access to flexible work would mean they could take on more paid work, while 77% of women agreed they would be more likely to apply for a job that advertised flexible working options.
How should employers prepare for the new flexible working act?
Employers should look at their current policies around flexible working and ensure they reflect the new law, in particular with relation to the length of service required.
Training managers on the new rights will be essential, as employees must now be consulted before their request is refused. Managers should also be made aware of the shorter time frame in which to consider a request.
There remains a list of permitted business reasons for which a request can be refused, and the employer must offer concrete evidence to support the reason for refusal.
The reasons are:
- Burden of additional costs
- Detrimental effect on the business’ ability to meet customer demand
- Detrimental impact on quality and performance
- Unable to reorganise work among existing staff
- Unable to recruit more staff
- Insufficient work during the periods the employee wishes to work
- Planned structural changes.
One option is to offer a trial period to see how the flexible working arrangement works – this offers both employer and employee the chance to review the arrangements in practice.
Will the changes to flexible working make a difference?
When the flexible working act passed through parliament last summer, some lawyers suggested the flexible working law changes would have a limited impact.
Caroline Philipps, senior associate at Fladgate, said: “The new legislation arguably has relatively little impact in practice, especially as no minimum standard of consultation has been specified.
“The changes do place more of the burden of dealing with a flexible working request on the employer, who is going to have to evidence more engagement and make decisions quicker. An employer’s scope for refusing requests hasn’t otherwise changed.”
Others pointed out that offering flexible working options – above and beyond the need for legal compliance – can help boost your employer brand in a tight recruitment market.
A recent study by HR recruitment company Wade Macdonald showed that although 88% of workers consider flexible working to be a valuable benefit, the perception is that it is more likely to be granted to managerial employees.
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