New legislation on flexible working becomes law tomorrow

Realise HR's Martin Norris says: "In 2022, 6% of employees changed jobs due to a lack of flexible working. According to CIPD, an additional 12% of people left their profession entirely due to a lack of flexible options within their sector.

From a talent acquisition standpoint, there’s no doubt that an employer’s approach to flexible working is a key factor when it comes to their ability to attract the best people. As Acas Chief Executive Susan Claws states, “there’s been a global shift and changed attitudes towards flexible working. It has allowed more people to better balance their working lives” and consequently almost 70% of employees now prefer a hybrid working approach (People Management poll). Despite this, Virgin Media research indicates that almost 40% of businesses returned to a five-day, office week last year, with many companies now engaged in debate as to the need for physical office presence at work.

As of April 6th, new legislation comes into force to encourage more discussion about the possibility of flexible working between employers and their respective employees. Despite flexible working contributing an estimated £37 billion to the UK economy annually there has been little clarity on how to deal with flexible working requests, and so the new legislation is accompanied by an Acas statutory Code of Practice to give better guidance on how to consider flexible working requests within the framework of the Bill.

So, what are the major changes?

• Employees will be able to make a statutory request for flexible working from day one of their employment rather than having to wait 26 weeks. The emphasis here being that flexible working is not a privilege or incentive and should be normalised as part of everyday employment discourse.

• Employees will be able to make two flexible working requests each year instead of one and employers must respond to each request within two months (reduced from three).

• Unless the request is fully accepted, employers will be required to consult with the employee about the request. There’s an emphasis on approaching these meetings with “an open mind” where parties “listen and engage meaningfully with each other so that a fully informed, evidence-based decision can be made”. Essentially, there’s more encouragement here on compromise and discussing potential alternatives if the request cannot be agreed.

• The employee will no longer have to explain in their application how their request will affect the business and how these effects can be mitigated. Essentially, the onus is taken off the employee having to accompany their request with pre-built solutions on how it can be achieved with the least disruption. While a business can still reject a flexible working request based on one or more of the business reasons outlined in the Employment Rights Act 1996, the Acas Code of Practice states that “the starting position should be to consider what may be possible” and is therefore attempting to remove anything that might get in the way of this positioning.

To agree or reject a request is ultimately in the hands of the employer - not all roles are going to be suitable for flexible working. However, this new legislation (with its emphasis on compromise) does open employers to a greater risk of claim if they don’t consider alternative solutions when rejecting a request. Moreover, it’s crucial that employers have a good understanding of the Code for while failure to observe it does not by itself provide grounds for legal proceedings, provisions of the Code are admissible as evidence within employment tribunals."