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Changes to law on flexible working

31st July 2023
The subject of flexible working arrangements has come to the fore since the impact the COVID lockdowns. This resulted in a large number of employers having to introduce flexible working arrangements in order to continue in business. Some of those businesses had not implemented flexible working arrangements before that time, or at least not on any significant scale. In addition, in an age of increasing use of technology in the workplace, with much work capable of being done “remotely” and at a time that many businesses may need to reduce rent costs it is perhaps of no surprise that the topic of flexible working arrangements and changes to the statutory provisions on this issue have received attention in Parliament.

On the 14th July 2023 the Employment Relations (Flexible Working) Act 2023 received its third reading in Parliament.

The MP that sponsored the Act had argued that statistics supported the need for the legislation, quoting figures from that the charity Working Families that suggested that three in 10 UK parents are in jobs below their skill levels because they cannot secure flexible working arrangements. Research from the CIPD in May 2023 also indicated that around 4 million workers in the UK had changed careers due to a lack of flexibility in their job.

The new legislation introduces a number of changes to the current rules on flexible working arrangements. The changes mean that employees are now able to make two flexible working requests in any 12 months period (currently just one request is allowed). The time limit for dealing with a request has been reduced from 3 months to 2 months if no extension is agreed. An important change in practice is that employers will not be allowed to refuse a request for flexible working arrangements until the employee has been “consulted.” Finally, the changes mean that employees are no longer required to explain within their application to explain the effect that the employee thinks the request will have on the employer’s business and how the effects can be dealt with.

Frankly we have always thought that it was illogical for the employee to say in their application how their request would impact the business and how they could deal with such impact. It also appeared restrictive that the employee could make just one request in any 12 months period under the previous regulations- particularly bearing in mind the unpredictable nature of changes to any person’s life that may result in a need for flexible working arrangements, such as changes to their hours of work.

The Act does not change the qualifying period of employment before the employee can apply for flexible working arrangements- which continues to stand at 26 weeks of employment with the particular employer. This requirement is expected to change, but any such change will depend on secondary legislation being introduced to bring it into effect.

A major gap in the Act is the failure to define the consultation that is required with the employee. So, until this matter is clarified by any secondary legislation this aspect of the process remains somewhat vague and unclear.

ACAS has embarked on a consultation over the updated Code of Practice on handling flexible working requests. The Code does not statutory force but can be taken into account in any Employment Tribunal proceedings. That consultation is due to end in early September 2023.

This new Act should prompt employers into reviewing and, if necessary, updating their policies and procedures surrounding flexible working, so that they do not inadvertently fall foul of the new legal requirements.

At Hallett Employment Law Services we can review the policies and procedures to assist with compliance with the new legislation.           

If you need any further advice on any matter raised in this article do not hesitate to contact us at Hallett Employment Law Services Ltd.

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