Employment Relations (Flexible Working) Act - Employees will have more influence over where, when and how they work

Employees will have the increased right to request flexibility over important aspects of their working time now that the Employment Relations (Flexible Working) Bill has passed into law and received Royal Assent on 20 July 2023. The new law, introduced as a Private Members bill, is expected to come into force in 2024 having been supported by the Government. The Act is expected to allow and promote more employees who are in work with the opportunity to find a greater balance between work and home life.

This comes at an interesting time where more UK employers and the Government are considering the impacts of a four day working week, which has been successfully implemented in some other countries.

The new provisions introduced by the Act are:

• An employee no longer has to provide an explanation as to the effect their flexible working application will have on their employer and how to deal with the effect.
• An employee can make two statutory requests for flexible working within a 12-month period, as opposed to one application.
• An employer who wishes to reject a flexible working request must now consult with the employee making the request. A failure to do so may result in a complaint being made at the Employment Tribunal.
• An employer must respond to a flexible working request with two months (previously three months), unless an extension is agreed.

Daniel Theron, a partner, points out “whilst there are some significant changes, other provisions that were expected, such as flexible working requests from day-one of employment and the right to appeal a rejected application, have not been included. Also the statutory reasons for rejection remain the same and have not been amended.” Daniel further commented “Many employees rely on flexible working, without which they would not be able to manage their other commitments. Since the pandemic, there has been a shift in working culture and patterns and more people are working from home on a full time basis or on a hybrid basis, however many employees would like to engage in the same privileges. The Act is a step forward but there is a long way to go before flexible working is the default option in the workplace and such requests are granted readily.”

Giambrone & Partners’ experienced employment lawyers note that recent research by Reed employment agency suggests that flexible working is increasingly popular with jobseekers and vacancies offering flexible working are more attractive. Employers should ensure that they understand the implications of the new Act and manage flexible-working request correctly within the context of mitigating any potential litigation in the future. 

The Advisory, Conciliation and Arbitration Service (ACAS) released draft guidance on 12 July 2023 in an update to its current 2014 guidance, which is currently being consulted on. This suggests that an employee must make the request in writing and include:

1. the date of the request;
2. a statement that it is a statutory request for flexible working;
3. the change to working conditions the employee is seeking;
4. the date on which the employee would like the change to come into effect;
5. if and when the employee has made a previous request for flexible working.

Under the draft guidance, ACAS suggest that employers ought to have a meeting with the employee, regardless of whether they intend to accept the request, to ascertain the best way to deal with the request and how this can be implemented. If a request relates to a disability, this should be dealt with differently under the procedures in place for dealing with a reasonable adjustment under the Equality Act 2010.

The draft guidance also suggests that a decision should be communicated in writing without reasonable delay, including any reasons for rejection. ACAS have included, which our lawyers expected to have been implemented within the Act, an appeal process which, in our view, would be a prudent step for employers to incorporate when dealing with these requests.

Although employees are now able to make such requests more frequently, and are entitled to have their requests considered and consulted upon, the Act does not amend the 8 statutory grounds for rejection which are:

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. a detrimental effect on ability to meet customer demand
7. insufficient work available for the periods the employee proposes to work
8. a planned structural change to the employer's business

Although the ACAS guidance above is in draft form, employers ought to be careful in dealing with matters where they do not comply with the current ACAS code of practice, as any failure to do so can allow certain awards in the Employment Tribunal to be increased by up to 25% depending on the circumstances.

Furthermore, the government has now opened an open consultation for evidence on non-statutory flexible working to investigate further the types of flexible working arrangements which are in practice, so that the government may understand the views and needs of both employees and employers when developing their legislative strategy going forward.

There is a global movement towards flexible working as many jobs are not office based and can be undertaken from another location. Many organisations such as Centre for Economics and Business Research, the Chartered Institute of Personnel and Development (CIPD) and ACAS have campaigned to bring about flexible working. 

The ACAS chief executive, Susan Clews commented that there has been a “global shift and changed attitudes towards flexible working”. She further mentioned, “Our new draft code encourages employers to take a positive approach to flexible working and addresses all the new changes in the Act.”

The new Act is likely to bring more diversity and experience into the workplace allowing employment to be accessible to all, whilst ensuring the interests and needs to employees are given paramount importance and care.

Danile Theron advises on litigation in family law, employment, cross-border debt recovery and defamation. Daniel has considerable expertise in contentious cross-border family law, including complex financial arrangements and enjoys a high level of success in both debt recovery and employment law. 

Daniel enjoys a reputation of being meticulous in his analysis of the merits of a matter and tenacious in his pursuit of a successful outcome for clients. He frequently impressively navigates challenging situations culminating in an excellent level of achievement, in excess of all expectations.

For more information about all aspects of employment law and its application please contact us at clientservices@giambronelaw.com or click here.