From 6th April 2024, The Employment Relations (Flexible Working)
Act 2023 will come into force with new flexible working regulations
coming into effect. Katherine Bridge, Solicitor in the Employment
team, outlines the key changes.
The new regulations incorporate a broader definition of flexible
working; the traditional flexible arrangements, such as part-time
work and job-sharing, remain valid, with provisions for hybrid
working and reduced hours being included. They also extend the
right to request flexible working arrangements to all employees,
removing the previous limitations based on tenure or parental
status.
The updated legislation aims to focus on setting the right
conditions so that employees and employers can have an open-minded
conversation about what flexible working arrangements might be
possible in any given context, allowing all employees to request
changes to their work arrangements and requiring employers to
properly consider those requests, although they do not have to
necessarily agree to them.
The headlines of the new regulations are:
Day one right
Employees will have the right to request flexible working from
day 1 of their employment.
Previously 26 week's service was required before making a
request.
Two month response time
Employers need to respond to each request within two
months.
Previously this was three months.
Two requests in 12 month period
Employees will be able to make a second flexible working request
within any 12-month period.
Previously this was one request per 12 months.
However an employee may have only one 'live' request for flexible working with their employer at any one time. Once a request has been made, it remains live until:
- A decision about the request is made by the employer.
- The request is withdrawn.
- An outcome is mutually agreed.
- The statutory two-month period for deciding requests ends.
- A request continues to be live during any appeal or any extension to the statutory two-month decision period that an employer and employee may have agreed.
Employers must consult with employees
Unless the employer decides to agree to the employee's written request in full, they must consult the employee before they make a decision. In such cases, the employer should invite the employee to a consultation meeting to discuss the request. This duty aims to prevent employers from defaulting to 'no' without first engaging with the employee when responding to individual requests.
Employees no longer need to explain effect of changes
The new regulations remove the requirement for employees to explain what effect the change applied for would have on the employer and how that effect might be dealt with. However, a request must be in writing and state that it is a statutory request for flexible working, and include:
- The date of the request.
- The change the employee is requesting to the terms and conditions of their employment in relation to their hours, times or place of work.
- The date the employee would like the change to come into effect.
Effectively and fairly dealing with a request for flexible working
It is crucial for employers to engage in a reasonable and timely
manner when considering flexible working requests. It is important
to maintain transparent communication with employees throughout the
process, providing clear reasons for accepting or rejecting a
request.
In handling a request, and any information that the employee
discloses as part of that request, employers must not discriminate
unlawfully against the employee in relation to any of the protected
characteristics set out in the Equality Act 2010. The nine
protected characteristics are: age, disability, gender
reassignment, marriage and civil partnership, pregnancy and
maternity, race, religion or belief, sex, and sexual
orientation.
Employers will retain the ability to refuse such requests based on
specific grounds. A decision to reject a request must be for one or
more of the following business reasons:
- The burden of additional costs.
- An inability to reorganise work amongst existing staff.
- An inability to recruit additional staff.A detrimental impact on quality.
- A detrimental impact on performance.A detrimental effect on ability to meet customer demand.
- Insufficient work available for the periods the employee proposes to work.
- Planned structural changes to the employer's business.
How Blaser Mills Law can help
As the UK adopts new flexible working rules it is important to stay informed on the expanded eligibility criteria, diverse types of flexible working, and the considerations surrounding these arrangements.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.