In response to the call by employees across the UK to be given more flexibility over where, when and how they work, the Employment Relations (Flexible Working) Act 2023 has been passed and will be in effect on 6th April 2024. But what does this mean for employers and employees, and when should you start preparing for the changes? We guide you through the changes, and what you should do now to prepare.
What is the current law on flexible working?
Under Section 80F of the Employment Rights Act 1996 and the ACAS code, if you have worked for your employer for at least 26 weeks, are an employee and not a “worker”, and have not made any other flexible working request in the last 12 months, you can formally submit a flexible working request to your employer.
There are a multitude of reasons why an employee might request flexible working. These requests could include reduced working hours, changing working location to remote (home) or hybrid working, or varying start and finish times.
Employers must remember that any agreed change will represent the new terms and conditions of employment for that employee and should be updated in a new contract of employment (statement of terms and conditions) unless the request is specifically for a short period.
Employees must make flexible working requests in writing with specified details on the change they seek, be dated, and explain the effect the change will have on the business and how this could be dealt with.
Can flexible working be refused?
If an employer is rejecting a request, it must be for one of the statutory reasons:
- the burden of additional costs.
- an inability to reorganise work among existing staff.
- an inability to recruit additional staff.
- a detrimental impact on quality.
- a detrimental impact on performance.
- a detrimental effect on the ability to meet customer demand.
- insufficient work for the periods the employee proposes to work.
- a planned structural change to the business.
The employer must provide an outcome to a flexible working request within three months of the date of the request.
What will be the changes to flexible working law on 6th April 2024?
There are several things the Employment Relations (Flexible Working) Act 2023 changes about the current flexible working regime and notable things that it does not. The 5 changes are below:
- There will be a day 1 right for employees to submit a flexible working request. There is no minimum service length requirement.
- Employees will now be able to make two flexible working requests in any 12-month period.
- Requests must be dealt with by employers within two months of receipt of a request if no extension is agreed upon, such as due to a trial period.
- Employers cannot refuse a request until they have ‘consulted’ with the employee (although there is no legislative definition of what that ‘consultation’ needs to include).
- In their application, employees will no longer need to explain what effect they think agreeing to the request would have and how any such effect might be dealt with.
In terms of what it doesn’t do:
- It doesn’t change the statutory reasons for turning down a request.
- It doesn’t require employers to offer a right of appeal if a flexible working request is rejected. The offer of a right of appeal is recommended in the ACAS Code of Practice on Flexible Working. These changes have not made it a requirement of the process.
- There is no minimum standard of consultation set out at all.
Who will this affect?
All UK employers, regardless of size, who have an employed workforce will be affected. This does not apply to casual “workers” or self-employed contractors. If you need help determining the employment status of your workforce, Red Kite HR Services can carry out an assessment for you.
What do I need to do to be prepared?
Start assessing and preparing your internal resources for handling a likely surge in flexible working requests from 6th April 2024 and consider what flexible practices would and would not be viable in your business. Armed with comprehensive business reasons for and against the most likely requests for change, you will avoid the panic of rash decisions when requests hit your desk.
Questions you should be asking are:
- How might we need to review our recruitment process and advertisement of vacancies to remain competitive given there is now a day 1 right for employees to request a change regardless of stated hours and location for example. Can these be advertised as full OR part time?
- To what extent do we have the infrastructure (IT and equipment) for employees to work from home on a hybrid or permanent basis?
- To what extent could we reduce our office overheads to facilitate working from home more?
- To what extent do we advertise our roles as full or part-time to attract the best candidates?
- To what extent do our roles require fixed start and finishing times, and can we move to core hours instead?
- How could we combat a de-motivated workforce if flexible working cannot be granted and there is a chance our talent will look elsewhere?
- How do our competitors manage their workforce? Are they more agile than we are?
Do I need a Flexible Working Policy?
Yes. As flexible working is a statutory right, you should already have a comprehensive, flexible working policy within your organisation that reflects the current law. This policy must be reviewed, and a new Flexible Working Policy (2024) must be implemented when the Employment Relations (Flexible Working) Act 2023 becomes operational by 6th April 2024.
When do I need to issue a new Flexible Working Policy?
If your Flexible Working Policy doesn’t already incorporate the 6th April 2024 legislation changes, you will need to draft these ready for implementation on or before the 6th April 2024 and communicate the changes to your workforce by this date.
Given the sea change of other employment legislation in 2024 coming into effect this year, we recommend you regularly review the Red Kite HR Services updates on our News page, and follow our LinkedIn Company articles. Work with your trusted HR advisor now to draft your new Flexible Working Policy.
At Red Kite HR Services, our expert HR Consultants have significant experience in business planning ahead of new legislative changes and can give you practical advice on getting prepared for the 6th April 2024 implementation of the Flexible Working Act 2023. Contact us today.