After years of campaigning by several notable individuals and organisations (with special mention to Anna Whitehouse, Pregnant Then Screwed, Working Families and the TUC) The Employment Relations (Flexible Working) Bill has now been awarded Royal Assent. This means the Employment Relations (Flexible Working) Act 2023 is now in force. The reform will reduce limitations on flexible working and make employment more accessible. It is our opinion that the reform will benefit both employers and employees.
What Has Changed?
- With the employment relations act, employees can now make two flexible working requests within a twelve-month period, as opposed to the previous one request per twelve-month period.
- It will no longer be a requirement for employees to detail in writing how their flexible working request would affect the employer and how the employer could deal with these effects.
- Employers will be required to respond to flexible working requests within two months, rather than the previous three months.
- Employees cannot refuse a request unless an employee has been consulted about the application first.
Applying for a Flexible Working Request
Applying for flexible working is called ‘making a statutory application’. The laws on flexible working state that an employee must be employed by the same employer for at least 26 continuous weeks before making a statutory application.
An employee should not make more than two requests in a 12-month period or make one while a request of theirs is still proceeding. An application is ‘proceeding’ during the period it is made until it is concluded, during the period of an appeal until the appeal is concluded, and where an application or appeal is extended until it is concluded.
How to Make a Successful Flexible Working Request
To request flexible working an employee should make a statutory application by writing a letter to their employer. This letter must include the date, a statement that it is a statutory request and details of their flexible working request.
The employer should then consider this request and make a decision within two months, or within an agreed timescale. Employers are required to consult with employees before rejecting a request. Employers should deal with requests in a reasonable manner, they should only reject a request under one of the eight statutory grounds, which are detailed below. If an employer does not handle a request in a reasonable manner an employee may take them to an employment tribunal.
When Can an Employer Reject a Flexible Working Request?
Under the legislation of flexible working, an employer can reject a flexible working request only where one of the following eight statutory grounds apply:
- Additional costs.
- Detrimental effect on ability to meet customer demand.
- Inability to reorganise work among existing staff.
- Inability to recruit additional staff.
- Detrimental impact on quality.
- Detrimental impact on performance.
- Insufficiency of work during the periods the employer proposes to work.
- Planned structural changes.
Before an employer can reject a request, they will now be required to consult the employee to discuss alternative options, or to explain why they will be rejecting a request. However, there has been no guidance as to how employees should be consulted.
Dealing with Discrimination Law
Some employers may feel worried following the Royal Assent of this legislation, however, it is important to remember that the legislation merely reduces limitations on employees’ rights to request flexible working. Employers still have the right to reject applications under the eight statutory reasons. These eight statutory reasons provide a broad enough scope for employers to reject requests where it would be unreasonable, disproportionate, or detrimental to their business. The requirement on employers is for them to deal with requests reasonably.
How flexible working requests are dealt with can overlap with discrimination law. For example, an employee requesting flexible working following their return from maternity leave, or an employee with a disability requesting flexible working to make work more accessible for them. This further emphasises the need for employers to carefully consider what is fair and proportionate.
Making Flexible Working a Day-One Right
The Government expressed plans to make flexible working a ‘day one’ right in the Consultation on Making Flexible Working the Default 2021. It may come as a disappointment to many people that this has not been incorporated into the reform. Therefore, an employee will still need 26 weeks of continuous service to be eligible to make an application for flexible working.
The Government is supportive of making the right to request flexible working a ‘day one’ right, but that will come under secondary legislation. So, although that particular reform was promised following consultation in December, there is currently no clear timescale on when it will become law. This means that what is arguably the most beneficial of the suggested changes to the existing framework will have to wait, as will many employees and job applicants. A high proportion of those individuals will be parents facing rising childcare costs or disabled and vulnerable people facing barriers to work amidst a cost of living crisis.
Benefits of the Reform
Flexible working enables employees to work in a way that suits their individual needs. There is a misconception that flexible working means remote working. However, it can be incorporated in many ways, such as job sharing, part-time working, compressed hours, flexitime, annualised hours, staggered hours, change of work location, remote working, and phased retirement.
We believe the Employment Relations Act reform will benefit employees by giving them greater opportunities to work in a way which suits them. Flexibility reduces stress and produces happier and more productive workers. Flexibility enables people to achieve a balance between work and home life.
Who Will Benefit?
Flexible working may be particularly beneficial for people with responsibilities such as children and dependants, and people with disabilities or health issues. It can improve access to employment, which can help to reduce pay gaps, employment gaps and provide more employment opportunities. The Government has stated that around 1.5 million workers will benefit from the reform. The new legislation affirms the widely held view that flexible working can and should be more commonplace, and that it brings with it the benefit of making work more accessible to the most marginalised people in society.
The changes can also be beneficial for employers. Allowing flexible working can improve relations with employees and boost morale and productivity. Flexibility may also prevent high turnover of staff and reduce absences. Retaining staff can create a more skilled and experienced workforce for employers. Removing restrictions will lead to a more diverse workforce and provide a larger talent pool of workers for employers to recruit from.
Howells' Comments on the Reform
The new requirement to consult an employee before rejecting a decision will encourage more careful thought into requests and encourage open dialogue between employer and employees to share views and ideas.
Although it is no longer a legal requirement, we feel that a flexible working request would be more persuasive if it included the reasons for it being made, the effect it would have on the workplace, and solutions to combat these effects.
However, it has also been pointed out that the lack of detail in the Bill surrounding what constitutes valid ‘consultation’ is an omission likely to lead to disappointment. There is no requirement for face-to-face consultation. It would seem that a telephone call or even an email exchange would do.
The reasons employers can rely on to refuse a flexible working application remain the same as before, and it has been said that these do not represent a particularly high hurdle.
The remedies available to employees in circumstances where the employer has failed to deal with the application properly remain limited in scope, and the Bill has failed to deliver a right of appeal. Although there is no right of appeal, it is good business practice for employers to offer an appeal process.
Learn More with Howells
It is a good idea for employers to update or implement a flexible working policy to reflect the new law. If any employers would like assistance with this, Howells' employment law solicitors would be happy to advise and assist.
