Time for change? The new Flexible Working Bill examined

Guest blog from Horsfield Menzies

There has been a lot of coverage of the Employment Relations (Flexible Working) Bill since it received Royal Assent on 20 July 2023, indeed in a press release from the Department for Business and Trade, it was hailed that ‘millions of British workers will have more flexibility over where and when they work’ but what practical difference will it make to flexible working requests and how should you handle them?

The key changes to the law will be as follows:

• Whereas currently, an employee has to set out what effect they think their requested change would have and how it could be dealt with, this will no longer be a requirement when making a flexible working request;
• An employer must now consult with an employee before it can refuse a flexible working request;
• An employee will be entitled to make two requests in any 12-month period, rather than one request as it is at the moment. The first request must have been dealt with and concluded however before a second request can be made.  Also, a request made under the ‘old’ regime will count when determining the number of requests made in a 12-month period;
• The employer’s response time for providing a decision to a flexible working request is lessened from three to two months (although it will be possible for the parties to agree a longer period if desired).

One significant headline that has been very widely reported is that employees will have a ‘day one’ right to request flexible working. However, the Bill itself does not introduce that right;  government has suggested it will be introduced when ‘parliamentary time allows’ using secondary legislation.

It is also important to note that the eight business reasons for rejecting a request, as specified in section 80G(1)(b) of the Employment Rights Act 1996 are not being repealed and will still exist when the new Bill comes into force.  For clarity, these are:

1. Burden of additional costs
2. Detrimental effect on ability to meet customer demand
3. Inability to reorganise work among existing staff
4. Inability to recruit staff
5. Impact on quality
6. Impact on performance
7. Insufficiency of work during hours you propose to work
8. Planned structural changes

Acas is also consulting on updating its statutory Code of Practice on handling requests for flexible working to reflect these changes. The non-statutory guidance which sits alongside the Code of Practice will also be updated. Acas state that the ‘aim of the Code is to provide employers, employees and representatives with a clear explanation of the law on the statutory right to request flexible working, alongside good practice advice on handling requests in a reasonable manner’.

There is not yet a set date that the Bill will become law but the Department for Business and Trade has suggested it may be in July 2024.  Employers therefore have around a year to prepare for how they will deal with flexible working requests before the Bill is law.

Flexible working can bring many direct benefits to businesses such as attraction and retention of the best candidates and reduced overheads (for example office space). There are also indirect benefits for employers and employees too, such as improvements in mental health, wellbeing and job satisfaction. For these reasons, it is undoubtedly an important issue for employers. Indeed, research by the CIPD has found that due to a lack of flexibility, 6% of employees changed jobs last year and 12 % percent left their profession altogether. These figures represent almost 2 and 4 million workers respectively, which demonstrates the scale of the issue.

Whilst the Flexible Working Bill does bring change, it is useful to remember that an employer is not duty-bound to agree to a flexible working request if the request meets one of the 8 reasons that a request can be rejected. It is important however to consult with the employee beforehand and seek to understand the proposal and the possible benefits for both parties prior to any decisions being made.

Flexible working will continue to be a significant part of the employment landscape and the team here at Horsfield Menzies can help you navigate the complexities of flexible working applications and the changes that the Flexible Working Bill will bring to ensure you are compliant.

Source:

https://www.gov.uk/government/news/millions-to-benefit-from-new-flexible-working-measures

https://www.acas.org.uk/about-us/acas-consultations/code-of-practice-flexible-working-requests-2023