Laura Salmond: Exploring the impact of the Flexible Working Bill
The Flexible Working Bill will likely see more employees become aware of the right to make flexible working requests and the volume of these requests will increase, Laura Salmond suggests.
On 29 July 2023, the Employment Relations (Flexible Working) Bill received Royal Assent. These amendments to the Employment Rights Act 1999 are expected to enter into force in 2024 and will make significant changes to employees’ entitlements to make flexible working requests.
A flexible working request is a request by an employee to change the terms and conditions of their employment relating to their hours of work, times of work, or place of work.
This legislation, proposed by Labour MP Yasmin Qureshi and supported by the Conservative government, is designed to help remove “invisible restrictions” faced by those with caring responsibilities and long-term health conditions in finding employment and securing promotion. It is believed that changes to flexible working will also assist employers in attracting, motivating, and retaining staff.
There are four main changes:
- Employees will be able to make two flexible working requests per year. At present, employees are only entitled to make one request per year.
- The requirement for employees to “explain what effect, if any, the employee thinks making the change applied for would have on his employer and how, in his opinion, any such effect might be dealt with” has been removed.
- Employers must consult with their employees before rejecting a flexible working request. There has been debate as to how much is required from employers to meet this consultation requirement and, at present, this remains unclear.
- Decisions on flexible working requests must be made within two months (rather than the current limit of 3 months) unless a longer period is agreed with the employee.
Although there were discussions during debates on the bill regarding the removal of the 26-week qualifying period for making flexible working requests, this was not included in the final version of the bill. The UK government has stated that the “day one right to request flexible working will be delivered through secondary legislation,” however this has not yet been tabled.
It is likely following these changes that more employees will become aware of the right to make flexible working requests and that the volume of these requests will increase.
Employers should bear in mind that they will still be able to reject such requests, provided that the new consultation requirement is complied with, relying on one of the eight business grounds set out in law. For example, a flexible working request can be rejected where work cannot be re-distributed amongst existing staff, or where this would have a detrimental impact on quality or performance.
Employers should prepare for these changes by considering if and how flexible working requests can be accommodated and how to consult with employees who make such requests. In addition, employers should ensure that they have an updated flexible working policy rolled out to all staff, taking the above changes into account.
Laura Salmond is a partner at BTO Solicitors LLP