Written by Jo Stevens | 20th July 2023

Flexible working offers a range of options for how and where people work – it can mean any combination of working from home or in the workplace, or working part time hours, flexi hours, job sharing, compressed hours, or staggered hours.

Since 2014, employees have legally been able to request changes to their working arrangements after 26 weeks of employment.

But with expected changes to legislation, millions of employees will be able to request flexible working from day one of their employment.

So, what does this mean for you as an employer? We’ve had lots of questions from our clients and here, our expert HR consultants answer them:

Q: When will this become law?

The Employee Relations (Flexible Working) Act 2023 has now achieved Royal Assent and the law is expected to come into effect sometime in 2024. This makes a number of changes to how flexible working requests can be made, but this Act itself does not include the right to request flexible working from day one yet. The Government expects to introduce secondary legislation to cover this specific point alongside the implementation of the Act next year.

Q: What does the new flexible working legislation mean for employees?

The Act will mean that employees must be consulted with by the employers before any request is rejected, and they will be allowed to make 2 requests per year, an increase from the current limit of just one.

Employees can expect an outcome to their request within two months rather than three, and they’ll no longer be required to explain the impact of their request or make suggestions for how to mitigate that impact when they make their request. The onus will now be on the employer to consider these points.

As and when the secondary legislation is introduced, employees will no longer have to wait 26 weeks before requesting flexible working arrangements. Instead, they’ll be able to ask on their first day.

Q: What does the legislation mean for employers?

When a flexible working request is submitted, you will have to consult with your employee and explore alternative options and ways you could accommodate the requested flexibility before rejecting it. You’ll need to consider the possible impact of agreeing to the request, and think creatively about how that could be addressed.

For instance, if it wouldn’t be possible to change a person’s working hours on all their days, perhaps you could change their hours on some days.

Q: What if we can’t accommodate a flexible working request?

You will still be able to decline a flexible working request if you have grounds, which must be rooted in one or more of eight defined reasons, just as it is now. These grounds include having a detrimental impact on employee performance, or on the business’s ability to meet customer demand. But you need to show you have considered how to make it work, and where possible evidence why it would not. Consider a trial period before rejecting the request outright.

Q: What would be the consequences of refusing a request?

If you have not been fair and reasonable in considering the request, or if you reject it for other reasons that those allowed, then you could be at risk of receiving a grievance or tribunal claim. Equally you will have to follow a fair and reasonable process, as set out in the new Act and supported by ACAS, to avoid similar claims.

Prepare for the changes by ensuring internal policies and processes reflect the new ‘default’. It will also be important to ensure that people in management positions who may be responsible for considering flexible working requests are well trained and aware of their obligations.

Q: How might ‘day one’ flexible working impact recruitment and retention?

If and when it comes into force, the right to request flexible working on day one can be viewed positively for employee relations. Employers can still reject the request if it really cannot work for their organisation, but being open to flexibility and giving staff more say over their working pattern makes for happier, more productive employees.

Flexible working has been found to help employees balance their work and home life, especially supporting those who have commitments or responsibilities such as caring for children, or people with disabilities. Employers will be able to tap into a pool of talented people that might have been unable to access work before if they weren’t able to work the traditional 9-5.

Employees will be more likely to recommend you as an employer, stay loyal to your organisation, and go the extra mile if you offer flexible working. Employers that are better able to attract, retain and motivate a talented workforce will perform better overall.

Q: Are there any other changes to the law?

The Government has also announced a new law that eliminates exclusivity clauses from employment contracts for those who earn £123 a week or less – which currently restrict almost 1.5 million low-paid workers from working for multiple employers.

Summary of the new legislation

Here is a round-up of the changes:

  • The Government is removing the 26-week qualifying period before employees can request flexible working, making it a day-one right.
  • Employers must consult with their employees, as a means of exploring the available options, before rejecting a flexible working request.
  • Employees will be able to make two flexible working requests in any 12-month period.
  • Employers must respond to requests within two months (down from three).
  • Employees no longer need to set out how the effects of their flexible working request might be dealt with by their employer.

If you have any questions about the new flexible working rules, get in touch with our team at info@realityhr.co.uk or call 01256 328 428.