The Employment Relations (Flexible Working) Act 2023 has been given Royal Assent. This means that changes have been introduced with respect to flexible working rules across the UK. The legislation is set to give the UK workforce more say in how they work than ever before – But what is actually changing and what do employers need to focus on?
In this article, we set out what the new flexible working request changes are, and the steps employers should be taking in response.
What is a statutory flexible working request?
Also known as making a ‘statutory application’, a flexible working request is a request from an employee to change their contract, a request for flexible working arrangements usually involves a request to change working hours, shift patterns or working location.
The statutory right to request flexible working is a legal entitlement and any attempt by the employer to prevent an employee from asserting a statutory right could result in an Employment Tribunal claim.
Under the previous flexible working rules, employees could make one flexible working request in a 12-month period and the employer could ask the employee to set out how they think their flexible working request may have affected the business and how the business could overcome any obstacles in agreeing to their request. There was also a legal obligation for employers to consider the flexible working request
4 Key changes to the right to request flexible working?
1) Employees can make two flexible working requests in any 12-month period.
Employers should view any statutory flexible working request from an employee to change their terms and conditions or their working patterns as a flexible working request.
Whether you can agree to the flexible working request or not, always seek advice from Avensure before taking action and ensure that proper records of any flexible working requests received and how they have been dealt with are kept.
2) Employers must consult with the employee BEFORE turning down their request for flexible working.
Following the new flexible working legislation, the requirement to consult goes beyond simply considering an application.
As part of the consultation for the new flexible working request process, there will be greater emphasis on the employer being able to demonstrate why the request has been turned down and on exploring alternatives to an employee’s request for flexible working.
3) The response time for dealing with flexible working requests has been reduced to two months.
Previously the time frame for dealing with flexible working requests was 3 months, employers must now consult and respond to a flexible working request within 2 months of submission. An extension to this time can be mutually agreed upon if necessary.
Following the new flexible working law changes employers have less time to consider a request and respond- if you receive a flexible working request, seek advice from Avensure at the earliest opportunity so we can advise you to act promptly to avoid unnecessary claims.
4) Employees no longer have to set out the effects of their flexible working request or how their request may impact on the business.
This change is intended to make the submission of flexible working requests easier and shifts the responsibility onto the employer to consult with an employee about their request, as opposed to asking the employee to ‘justify’ their request at the point it is submitted.
Employers can of course discuss the impact of the request on the business during the flexible working request meeting and explore other viable options with the employee.
What are the grounds for turning down a flexible working request?
Flexible working requests can be turned down for any of the following reasons:
- 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
Will businesses receive further guidance on their obligation to consult on flexible working requests?
Yes. Though we know there is a requirement to consult with employees, ACAS is currently consulting on the updates to its statutory code of practice on handling flexible working requests. This consultation is expected to end in September 2023. Further updates on the flexible working request law will be provided once available.
Are further changes to employment rights relating to flexible working expected?
It was anticipated that the 26-week qualifying service required before employees can request flexible working was going to be removed and that the right to request flexible working would become a right from day one of employment. This has not been announced as part of these legislative changes, but it may be introduced through secondary legislation.
For now, employees can only make an application for flexible working if they have worked for their employer for at least 26 weeks.
How can I prepare my business for the new flexible working rules?
Once the final statutory code of practice is in place, employers must be aware of their obligations as tribunals assess compliance with these codes. Failure to follow the codes can lead to increased awards payable by employers if a claim is successful.
Our expert employment law advisors are available 24 hours a day, 7 days a week to answer your flexible working request questions. Contact us today by clicking here: Avensure Contact!