Navigating the new flexible working legislation

The passing of the Employment Relations (Flexible Working) Act 2023 marks a significant change in how employers will need to respond to flexible working requests. This act, which has recently received royal assent and is expected to come into effect in 2024, ushers in a new era for requests for things like adjusted work hours, working from home, or compressed workweeks. In this article, we delve into the key changes brought about by the new legislation and outline what employers need to know, so that you can transition smoothly and remain compliant.

Changes Introduced by the Employment Relations (Flexible Working) Act 2023

One of the major changes introduced by the Employment Relations (Flexible Working) Act 2023 is that employees can now make two flexible working requests within a 12-month period. Previously they could only make one request in that time.  

The act imposes a clear obligation on employers to respond to flexible working requests within two months, having previously been three months. Furthermore, there will no longer be a burden on employees to

Employers are also obligated to consult the employee who makes the flexible working request upon giving their response. Currently there is no guidance as to what standard of consultation is required, however with time further guidance will be published).  

Prior to the Act receiving royal assent in July, there were discussions about the right to request flexible working becoming a day one right. However, this was not expressed in the new legislation. The government has mentioned this will be introduced in secondary legislation so currently, employees need to be employed for 26 weeks before making a request.

We covered the changes to flexible working legislation in more detail in an in-depth webinar with our HR Advice Line Manager, Lynda Arrowsmith. You can watch the recording back at your leisure.

What Employers Need to Know

1. Review, update and communicate policies

In light of the Employment Relations (Flexible Working) Act 2023, employers should thoroughly review and update their existing policies and procedures regarding flexible working. Ensure that these policies are aligned with the new statutory requirements, clearly outlining the process for requesting flexible working and the obligations of both parties.

2. Reasons for refusal

An employer’s refusal to accept an eligible employee’s application for flexible working must be based on one or more specific grounds. These are:

• the burden of additional costs;
• a detrimental effect on ability to meet customer demand;
• an inability to reorganise work among existing staff or recruit additional staff;
• a detrimental impact on quality or performance;
• insufficiency of work during the periods the employee proposes to work;
• planned structural changes; or
• such other grounds as may be specified in regulations made by the Secretary of State.

While an application under the right to request flexible working can be refused for one of the above specified reasons, employers should be aware that refusal to grant a request for flexible working may lead to liability under the discrimination legislation.

In British Airways Plc v Starmer EAT/0306/05, the Employment Appeal Tribunal upheld the tribunal’s finding that British Airways’ refusal to permit Ms Starmer, a pilot, to halve her hours amounted to indirect sex discrimination. She had brought her sex discrimination claim in the employment tribunal after the employer had agreed to only a 25% reduction in hours. It said that this requirement was discriminatory, because from statistics women generally have the primary childcare responsibility. Therefore, it was to the detriment of a considerably larger proportion of women than men. For this reason, all requests for flexible working should be taken seriously and given due consideration.

3. Documentation and record keeping

Maintaining accurate records of all flexible working requests and their outcomes is crucial. Employers should create a structured system for documenting requests, responses, and any subsequent appeals. This not only ensures compliance with the act but also serves as evidence of due process in case of any disputes.

The Employment Relations (Flexible Working) Act 2023 signifies a positive shift towards a more inclusive and flexible work environment. Employers need to adapt to these changes by understanding the new provisions, updating policies, communicating effectively, and embracing a culture that values work-life balance and flexibility. By doing so, organisations can foster a more engaged and productive workforce while staying compliant with the law.