Amongst the new employment laws expected to come into effect in 2024 is the Employment Relations (Flexible Working) Bill, which received Royal Assent and passed into law on 20 July 2023. Although a formal introduction date is yet to be announced, the new law is expected to come into force in April 2024, at which point employees across the UK will have greater access to flexibility over where, when and how they work. Employees will:
- gain the right to make two flexible-working requests within any 12-month period, whereas they previously could only make one such request; and
- no longer have to set out how the effects of their flexible working request might be dealt with by their employer.
Likewise, employers will:
- now be required to consult with their employees before rejecting a flexible working request; and
- be required to respond to a flexible working request within two months, a month shorter than the existing requirement.
From 6 April 2024, as a result of the Flexible Working (Amendment) Regulations 2023, which were laid before Parliament on 11 December 2023, employees will also have a new right to request flexible working from day one of a new job, removing the 26-week qualifying period before a request can be made. The measures will be supported by a statutory Code of Practice, which is currently being developed after consultation by Acas, the body that provides free, impartial advice to employers and employees on workplace rights, rules and best practice. This article considers the potential opportunities and ramifications of the new flexible working rules for employers.
What Can Be Requested?
Employees meeting the requirements to make a flexible working request from their employer may submit requests to:
- reduce their working hours to work part-time;
- change their start and finish time;
- have flexibility with their start and finish time (sometimes known as ‘flexitime’);
- do their work over fewer hours (‘compressed hours’);
- work from home or elsewhere (‘remote working’), all or part of the time; and/or
- share their job with someone else.
Such changes can be requested for all working days; specific days or shifts only; specific weeks only (for example, during school term time); or for a limited time only.
Access a Wider Talent Pool
Using the tagline “Happy to Talk Flexible Working” in job advertisements will certainly open your recruitment to a wider talent pool and help create a more inclusive workplace. The Chartered Institute for Personnel Development (CIPD), which has long campaigned for flexible working, suggests that employees who have greater flexibility report higher levels of job satisfaction, well-being and performance in their roles.
There’s no doubt that for many SMEs the key to being resilient right now is maintaining that sense of employee satisfaction, becoming an ‘employer of choice’ by recruiting and holding on to the best people. This can be achieved through a benefits strategy, and flexible working is certainly a part of that offer. Jobseekers are increasingly searching for vacancies offering flexible working, which according to recruitment agency Reed is proving to be more popular than four-day-week working arrangements.
Do the New Measures Go Far Enough?
Some commentators have noted that the new flexible working measures may not make a substantial difference to either employees or employers since some of the legislative reforms many organisations have championed have not materialised. The statutory grounds for refusing a flexible working request, for example, will not change. Employers can still reject a flexible working application for any of the following reasons:
- the burden of additional costs;
- detrimental effect on ability to meet customer demand;
- inability to reorganise work among existing staff;
- inability to recruit additional staff;
- detrimental impact on quality;
- detrimental impact on performance;
- insufficiency of work during the periods the employee proposes to work; and/or
- planned structural changes.
Consultation Need Not Be Substantive
After an employee has made a flexible working request, there is no minimum time frame for the required consultation with their employer and the new law does not stipulate that it needs to be a ‘substantive process’ (nor any other detail about what such consultation has to include). It therefore appears to be entirely open for employers to determine the nature, length and content of the consultation. However, while it is not a legal requirement for employers to properly consult employees on any outcome, taking the time to speak with them about how you arrived at that decision and the thought processes involved in considering their request, is a small step that can help minimise the risk of claims and maintain good relations with employees.
Sex Discrimination Claims
The right to request flexible working from day one is still to be dealt with in secondary legislation, so for now employees will still only be able to make requests once they have completed 26 weeks’ continuous service. While it may not be too difficult for employers to fit any refusal into one of the permitted reasons, the potential issue of indirect sex discrimination claims does remain.
These could arise where, for example, the requirement to work full-time hours is applied equally to men and women, but because more women have childcare responsibilities, fewer women than men are likely to be able to comply with the requested working pattern or hours.
So, if the reason for the flexible working request is childcare responsibilities, and the employer refuses, the employee may be faced with no choice but to resign. She may then look at bringing a claim for constructive unfair dismissal on the basis of indirect sex discrimination (and because the constructive dismissal is discriminatory, she does not need two years’ continuous service).
The burden of proof is then on the employer to demonstrate that their decision was proportionate within the law and that the consultation was, if not substantive, then certainly serious. Any decision to refuse a flexible-working request must be supported by a strong rationale.
Preparing for the New Flexible Working Measures
In light of the above, employers should take steps to prepare for the new flexible working measures, such as:
- updating flexible working policies to remove the requirement for 26 weeks’ continuous service before making a flexible working request;
- ensuring that flexible working policies and procedures are reviewed in light of the most up-to-date Acas Code of Practice and guidance;
- developing clear guidelines for management for the process of assessing requests for flexible work arrangements; and
- ensuring that managers are given training in order for them to be able to adapt to the new legislation.
The team of Motion Paradox start-up lawyers based in London and Los Angeles can give you legal advice and guidance in all aspects of employment law to ensure your firm hires and retains the right people to make your business more resilient, scalable, and profitable.