Employment Law Update: Flexible Working Requests
By Kate Palka, Client Legal Director and Employment Law specialist.
Back in July 2023, the Employment Relations (Flexible Working) Bill received Royal Assent, and the changes it heralded come into effect on 6 April 2024.
With some high-profile businesses taking a tougher line on the matter of office attendance, this new legislation serves as a reminder that, despite what employers may want, changes in working patterns are indeed changing.
Saying that, the imminent changes are not as radical as they may first appear. We’ll talk you through what’s different, and what you can do to get prepared.
What's changing?
- Employees will now have the right to request flexible working from day one of their employment: previously this was a right available only to workers of six months’ service.
- Before rejecting any request, employers must now consult with their staff.
- Previously, employees could only make one flexible working request per year. This has now been increased to two, though a second application cannot be made whilst the first is ongoing.
- Employees no longer need to discuss the impact their request may have on their employer, nor detail how it should be dealt with.
- Employers must respond to any employee request within two months, where previously the window was three months.
The Acas code
Acas is also updating its Code of Practice on handling flexible work requests, to reflect the legislative changes. Originally published in 2014, the Code aims “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”.
It is well worth becoming familiar with the Code and the accompanying non-statutory guidance, as they set out an employer’s responsibilities comprehensively and clearly. It is also worth noting that compliance with the Code is scrutinised by employment tribunals in related claims.
As with the new legislation, the updated Code is not radically different. But the changes do try to frame flexible working in a more positive light for employers, and promote a more consultative, supportive approach.
- Benefits highlighted
The draft Code includes a new foreword that focuses on the many benefits that flexible working can bring to employers and employees. Challenging the misconception that flexible working is exclusively beneficial to employees, the Code also highlights the employer benefits – employee retention, happier workforce, improved diversity and a solution for labour shortages. It encourages employers to adopt a more positive stance to requests, rather than rejecting them by default. - More consultative
Though the ultimate decision remains in the hands of the employer and no minimum standard of consultation has been specified, the new legislation mandates consultation following a request. The Code explores how this can be managed, advocating openness and positivity and a more collaborative relationship between employer and employee. Greater emphasis is placed on working together to find viable solutions and alternatives.
- Proposed meeting companions expanded
The current legislation does not provide for a right to be accompanied and this is still the case, but the Code is clear that allowing an employee to be accompanied is good practice. Employers should inform employees before the meeting that they may request a companion, who can be a colleague, a trade union representative or an official employed by a trade union. - The right to appeal rejection promoted as best practice
The revised Code advocates that employees have the right to appeal rejection and recommends that employers offer this proactively and support their employees in this process.
What's the impact?
Ultimately, the impact of the legislative changes and the updated Code will be subtle. The eight reasons on which a request can be refused remain unchanged and much of the guidance is suggested best practice rather than statutory requirements.
However, though not particularly far reaching, the changes being brought in indicate a gear change in attitudes towards flexible working and set expectations of a more supportive environment for employees. Throughout the Code, transparency and clarity is endorsed and employers are urged to furnish their staff with all relevant information and keep communication channels open.
Clearly, technological advancements and post-pandemic practices are making it increasingly difficult for employers to insist on full attendance in the office. Embracing the new recommended changes alongside the required ones will likely serve you well and convince employees and prospective employees that yours is a business that values its staff and works hard to create a positive working environment.
If you would like help updating your policies and procedures relating to flexible working, or training your staff on the updates, please contact us on info@thelegaldirector.co.uk or 020 3056 8538.
