United Kingdom: Changes to Flexible working and what this means for UK employers

published on 21 November 2023 | reading time approx. 4 minutes

The Employment Relations (Flexible Working) Act 2023 received royal assent on 20 July 2023. Section 1 of the Employment Relations (Flexible Working) Act 2023 (the Act) aims to amend sections 80F and 80G of the Employment Rights Act (ERA) 1996.

Background

Employees are able to request flexible working to adjust the way in which they work i.e., to reduce their hours, change their start and finish times and/or have flexibility with this, work compressed hours, term-time working or job-share.

Flexible working was introduced in 2003 and initially applied to working parents/carers only. In 2014, the right to request flexible working changed and gave every employee who had 26 weeks’ continuous service the right to apply for flexible working. Employers must follow a statutory process when handling a flexible working request from an employee which involves meeting with the employee to discuss the application. The process also gives employers the right to reject the request if it falls under one or more of the eight reasons listed in the legislation which are:

the burden of additional costs
if it has a detrimental effect on ability to meet customer demand
an inability to reorganise work amongst existing staff
an inability to recruit additional staff
if it has a detrimental impact on quality
if it has a detrimental impact on performance
if there is an insufficiency of work during periods the employee proposes to work
if there are planned structural changes

In July 2019, the UK government launched a consultation called the “Good Work Plan: Proposals to support families” and this considered flexible working. The consultation closed in 2019 with a commitment by the government to consider creating a duty for all employers to assess whether a job can be done flexibly and to make this clear when advertising a role.

On 21 September 2021, the UK government published a further consultation document to broaden the scope of the right to have a work-life balance. On 5 December 2022, the UK government produced its response to the consultation as it understood the importance of flexible working and how it differs from person to person.

Proposed changes

Following the 5 December 2022 response to the consultation on flexible working, the following changes to the Employment Rights Act 1996 have been announced:

Employees no longer have to explain how their request to flexible working might affect their employer and how the changes could be dealt with.
Employees are now entitled to make two requests for flexible working within a 12 month period, rather than one, although a second request can only be made after the first request has been fully processed.
Employers will not be permitted to refuse a request for flexible working before consulting with the employee who has made the request. If the employer refuses a request, it must still be based on one or more of the above reasons.
The time for the employer to respond to the request is shortened from three months to two months.

Furthermore, although not part of the Act, when the UK government announced the Act’s royal assent, it also referred to employees’ rights to request flexible working from the first day of working for their employer, a reduction from the original 26 weeks. No change has currently been made to the period in which an employee can make a flexible request. This “day-one” right is to come into force via secondary legislation and so, the 26 weeks’ continuous service still applies.

The UK government expects section 1 of the Employment Relations (Flexible Working) Act 2023 and the secondary legislation for the “day-one” right to come into effect approximately one year from the bill receiving royal assent, July 2024.

How will the changes affect employers?

With the changes in flexible working due to come into force in July 2024, it is important that employers in England and Wales keep up to date and align their flexible working policies to ensure that they are compliant with the proposed changes which will minimise complaints and the risk of claims from employees. Employers are also encouraged to consider flexibility in every role so employees understand what option is available to them which may prevent the need for a flexible working request i.e., by advertising a position which allows hybrid working or flexi-time.

The next steps

The Advisory, Conciliation and Arbitration Service (ACAS), the independent body tasked with giving employees and employers free, impartial advice on workplace rights, rules and best practice, is currently undertaking consultations to best update their statutory Code of Practice in anticipation of the changes to come with the new Act and secondary legislation. As mentioned above, employers ought to make best efforts to have their policies and contracts updated and align with ACAS’ recommendations on its guidance regarding requests for flexible working and workplace practices regularly.

The government is also following the trend of engaging with more flexible work practices as the Department for Business and Trade (DBT) issued a call for evidence of non-statutory flexible working to seek views from individuals and employers on their experiences of an informal approach to flexible working and how it operates in practice. Responses received will help to develop the government’s evidence base on non-statutory flexible working and inform its flexible working strategy.