The Employment Relations (Flexible Working) Bill has received Royal Assent and is now on its way to being enacted as part of the Employment Relations (Flexible Working) Act 2023. Yet if you’re part of a payroll or management team who regularly deals with flexible working requests, you might be left asking one simple question: don’t workers already have a right to request flexible working?
The answer to that question is yes, they do. They’ve had the right to request flexible working thanks to the Flexible Working Regulations 2014. And technically, they’ve been able to ask for flexible working under the Employment Rights Act since 1996, although that was rather more fuzzily worded.
So what’s changed? In a word, Covid.
The pandemic changed the way many individuals and organisations thought about flexible working. It was no longer the thing only workers with caring responsibilities did. It was something everybody did, and while we’ve seen a gradual return to the office in most organisations, there’s no doubt the working landscape has changed, perhaps forever.
That’s what led the government to launch a consultation of workers and employers, and the results of that consultation were put into the Employment Relations (Flexible Working) Bill, which has now received its Royal Assent.
How will the Employment Relations (Flexible Working) Act 2023 change the law?
As before, this is a right to request flexible working, not a right to flexible working itself, but the new law does make some significant changes:
Request frequency: Currently, any worker with 26 weeks’ service has the right to ask for a change in their working arrangements – although they can only ask once each year.
Although the 26-week period remains, workers can now make two flexible work requests in any 12-month period.
No more explanations: At present, the employee requesting the flexible working must offer “an explanation of how they think flexible working might affect the business and how this could be dealt with, for example if they’re not at work on certain days,” which always seemed a slightly odd requirement. That requirement will disappear with the new Act.
New timescales: Previous requirements were for employers to reach a decision within three months of the request or longer by agreement. That changes to two months (or longer by agreement).
New consultation: Existing government guidance offers instructions on what to do if you agree to the change and what to do if you don’t, but nothing about how to make that assessment in the first place. The new Act introduces a requirement to consult with employees before you refuse a request. Frustratingly, it doesn’t offer any thoughts on what the consultation should involve.
One thing that hasn’t changed is the right for employers to refuse the request for flexible working and the acceptable reasons for refusal appear to remain the same. As government guidance notes, these are:
- Extra costs that will damage the business
- The work cannot be reorganised among other staff
- People cannot be recruited to do the work
- Flexible working will affect quality and performance
- The business will not be able to meet customer demand
- There’s a lack of work to do during the proposed working times
- The business is planning changes to the workforce
Bigger changes in the future?
As you’ll gather, these aren’t huge amendments. Changes that could have had a much greater impact on companies and their payroll departments (e.g. a right to flexible working or a right to appeal a refusal) haven’t made it through the consultation or were never included in the draft bill in the first place.
But be prepared for a slight uptick in the frequency of flexible working requests once the new law is enacted.
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