On 20 July 2023, the Employment Relations (Flexible Working) Bill received royal assent. The act applies to all employees within 26 weeks continuous service who are seeking to request a change to their working pattern, hours or location. Secondary legislation is promised by the government to remove the length of service eligibility requirement, so that the right to make a flexible working request is a “day one” employment right. This later change will potentially enfranchise millions more employees to seek amends to their working conditions to attain greater flexibility.
What will change?
The act primarily focuses on the mechanics and process by which applications are made, introducing the following changes:
- It will be possible for employees to submit two applications to the same employer within a period of 12 months, provided the first application is no longer proceeding. This represents an increase from one application in the same period. Any applications made prior to the act coming into force must still be counted for the applicable period.
There is nothing within the act to prevent the employee's second request being submitted on identical or similar grounds. Nevertheless, the employer will need to exercise their duties in accordance with the regime, irrespective of whether any facts or circumstances have changed. Whilst an employee's decision to do this may constitute an abuse of the system, it may also be entirely legitimate, in light of the context at the time of the new application – employers should be careful not to move to an immediate refusal.
- It will no longer be necessary for applicants to explain what effect, if any, they think implementing their request would have on their employer and how, in their opinion, any such effect might be dealt with.
- It will be a requirement for the employer to consult with the applicant before refusing an application. There is no definition in the act of “consultation”, which has been criticised as a missed opportunity to legally codify a minimum standard on employers.
- The employer must provide a decision to the applicant within two months of the request, overriding the current timeframe of three months, beginning with the date on which the application was made. This can still be extended by both parties’ agreement.
These changes will apply to entitlements and applications under the regime on or after the date that the act comes into force, irrespective of when the employee’s employment or any other relevant arrangement began.
When will this happen?
Whilst the bill has received royal assent, the date that the act comes into force is still to be announced. Though, the government press release has suggested this will be approximately a year from now, to give employers time to prepare.
What will be the true impact?
Large swathes of the workforce now demand greater flexibility to their employment terms and we have seen the "baking in" of changes prompted by the pandemic. Whilst many businesses have embraced the shift to maintain a competitive edge in recruiting and retaining a wider pool of talent, these statutory changes represent a further pro-employee shift, placing a further burden on employers to deal with successive requests, engage more effectively and respond more quickly. The government has recognised that flexible working can contribute towards increased participation in the labour market and improve talent recruitment, staff motivation and retention, diversity and inclusion and therefore productivity, work output and competitiveness.
Whilst the flexible working statutory regime imposes mandatory provisions on employers applicable to all eligible employees, where such requests are made by female employees to accommodate childcare demands, the legal risk of rejecting such claims is higher. Such claims frequently take the form of indirect sex discrimination claims in respect of which compensation can be uncapped. It is readily accepted that women carry the primary burden of childcare for the purposes of proving a "group disadvantage". Compensation for breaching the procedural rules for dealing with a formal flexible request is eight weeks capped pay, which can be dwarfed by a discrimination award and the reputational impact a finding of discrimination can pose. This poses the true threat for employers who are unaccommodating or unreasonably rigid in their approach to flexibility.
How should employers proceed?
Employers should keep a close eye on when these changes come into effect and update any staff handbooks or HR policies dealing with flexible working requests to reflect the new process.
Hannah Ford