Last month, the Employment Relations (Flexible Working) Act 2023 finally received Royal Assent after years of campaigning by employment bodies and flexible working charities.
The new legislation, which is likely to come into effect in spring 2024, will enable employees to make two flexible working requests in any 12-month period (compared to just one under current law), and employers must respond within two months (compared to three). Employees will also not be required to explain the impact that granting their request would have on the business.
The government has indicated it will create a day-one right to request flexible working, although employment lawyers have pointed out that this is not explicitly stated in the bill, and would need to be dealt with under separate legislation. The current requirement is for someone to have been employed for 26 weeks.
So what will change?
One of the key aims of the legislation is to promote conversations between employers and employees. Speaking at a recent webinar with flexible working consultancy Timewise, business and trade minister Kevin Hollinrake told the audience that the change “is a right to request, not a right to insist”, and that the responsibility placed on employers to consult before rejecting requests will promote better conversations about arrangements and potential alternatives.
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Forty-five per cent of organisations attending the webinar said they wanted to go “actively above and beyond” the realms of the revised legislation, while 37% said they would aim for somewhere between compliance and offering enhanced rights.
Conciliation service Acas is currently updating its statutory code of practice on handling flexible working requests, with a consultation due to close in September 2023. The new code will address the changes in the law alongside the way work has changed since technology developments have accelerated and the Covid pandemic increased remote and hybrid working.
Consultation with employees
Some lawyers have argued that the new regulations will have little impact on flexible working in practice, particularly as no minimum standard of consultation has been specified – something that may be addressed in Acas’ revised code of practice.
“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,” says Caroline Philipps, senior associate at law firm Fladgate.
In order to prepare, employers could look at how long current requests are taking to process and whether this will cause any issues once the time frame is shortened from three months to two, Fladgate advises.
Similarly, the option to file two requests per year could mean there are more competing demands on the business, so employers should consider how they balance requirements and teams to avoid repeated requests and ensure targets are still met.
Hina Belitz, partner and employment lawyer at Excello Law, believes there a few reasons the regulations may not be as effective as hoped.
She says: “Firstly, the right to request flexible working has not yet been confirmed as a right an employee has from day one. This means that many people will not be able to raise official requests for support early enough to really assist them. Consider a working mother who is only able to accept a job if flexible working arrangements (e.g. work from home) are met so she can, for example, collect children etc. She may not have the ability to wait six months into her job before grant of such a right.”
“Secondly, we do not yet have enough guidance on what ‘consulting about’ a flexible working request, which employers will now be required to do under the new law, really means. Must they simply confirm to the employee that their request has been received and then denied? Must they have a meeting internally with senior personnel before feeding back to the employee? Until we know what ‘consulting’ really means, which will likely come from governmental or Acas guidance, there likely remain loopholes for employers to have a brief conversation or email exchange with an employee, before dismissing a request and arguing that they have met their duties under the act.
“Thirdly, this remains a right to request flexible working, and not to be granted it. A company is still reasonably able to turn down a request, and most will be able to point to reasonable grounds as the basis for a refusal.”
Get ahead
Just because the legislation will not come into effect until next year does not mean employers should not prepare in advance. Offering day-one flex now rather than when this is legally enacted, for example, could prove fruitful in terms of attracting candidates in a difficult market.
Supermarket chain Tesco for example recently announced it would grant a day-one right to ask for flexible working to its 300,000-plus employees.
It has also introduced a new requirement for all full-time advertised positions to be available on a flexible or full-time basis, while a range of different part-time or flexible working options can be discussed.
Good employes rarely see the legal minimum as the gold standard.” – Ben Thompson, Employment Hero
Ben Thompson, CEO of HR software company Employment Hero, says his workplace already operates with a “flexibility by default” approach.
“Our people can work from anywhere in the world with a good internet connection and generally make any time zone work,” he says.
“It’s been enormously beneficial, especially for employee retention – instead of seeing talent leave the company because they are moving overseas or have a toddler to look after, they stay at the company but make the work suit them.”
He stresses that the revised legislation still only grants employers to consult about requests, and that “if a request comes in that really isn’t workable, you can still reject it”.
That said, good employers “rarely see the legal minimum as the gold standard”, he adds.
“A key shift will be a change of attitude from a default of ‘no’ to requests. This is not something that can be perfectly encapsulated in a written policy but is something you can think about as an HR team – when a request comes in think of ways it could work rather than ways it could not.
“This could include exploring alternatives, something the draft code encourages. The initial request might not quite work for your business, but is there another alteration that could?”
Who gets it?
When considering how to prepare for changes to the law next year, organisations should audit how evenly spread requests and permissions for flexible working are in their business.
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.
It found that only 13% of non-managerial workers currently access flexible working, compared to 25% at directorate level. A fifth of non-management employees are required to work in the office every day, and an additional two-fifths for two to three days a week.
One of the barriers preventing organisations from offering more widespread arrangements is that managers confuse remote work and flexible work, says Chris Goulding, Wade Macdonald’s managing director.
“Offering flexible working arrangements does not mean employees will always work from home. The choice is what makes the difference. Flexibility improves employee wellbeing and satisfaction, giving employees control over their time so they can thrive in and outside of work,” he explains.
Think about retention
CIPD research shows that 6% of employees changed jobs last year specifically due to a lack of flexible working options, and 12% left a sector altogether because there was a lack of flexibility.
Those with disabilities or long-term health conditions were most likely to have left a role in the last year (23%), or changed profession (32%).
The HR body stresses that making it clear in job adverts that the organisation is open to flexible working and that different types of flexibility are available can help to address skills shortages and retain staff. Almost two-thirds of employers now provide some kind of flexibility in front-line roles, for example.
Thompson adds: “Another way to go above and beyond the legal minimum is to set a standard for flexible working that all employees can access by default. This could include, for example, the ability to work from another country for a set number of weeks a year, if the employee works their usual hours.
“Or, [you could] by default allow parents of children under the age of 12 to leave at 3pm and catch up at work at home. Having these kinds of policies makes it clear that flexible working is welcomed by your organisation – not just endured – and will be a huge help regarding both retaining and attracting talent.
“The pandemic shifted a lot in the way we work, opening up whole new attitudes to the traditional nine-to-five which has allowed far more people to participate fully in work. It would be a shame to leave that all behind.”
Culture is everything
“Whatever you end up with is going to be a compromise,” says Jess Lancashire, CEO and founder of parenthood and work consultancy From Another. “Flexibility means different things to different people: parents want autonomy, managers want predictability, leaders want growth and believe the business needs flexibility to flourish.”
According to From Another’s research, 44% of flexible working arrangements are managed informally, so culture and training are crucial. “Managers often find they are tasked with the intent of offering flexible working but not the tools. As an organisation, it’s not just about saying yes or no to a request, but thinking about the lived experience of those in your organisation and where the friction might emerge,” she adds.
In order to have a fruitful dialogue – particularly with the reduced consultation time – Lancashire advises breaking down where there might be complications and where either side may not feel comfortable, and setting a trial period to see what works. “Agree where the flexibility might be enabled and where it would not be deployed. Trust is so important,” she says.
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