Embrace Workplace Flexibility: The Employment Relations (Flexible Working) Act 2023

Embrace Workplace Flexibility: The Employment Relations (Flexible Working) Act 2023

In response to the evolving needs and demands of the modern workforce, the United Kingdom took a significant step forward with the enactment of The Employment Relations (Flexible Working) Act 2023. The legislation has passed through Parliament and is awaiting Royal Assent.

The Act aims to promote a culture of workplace flexibility, empowering employees and employers alike to create a more adaptable, productive, and harmonious working environment. The big news for employers, is that the right to request flexible working will not (yet) be a day one right. During the consultation stage, it was suggested that employees would be entitled to make such a request on their first day of employment, but thankfully this has not been included in the Act. If it had, it would have resulted in a number of concerns including how employers could advertise a role (in terms of hours) and the risk of good business planning being revisited on an employee’s first day.

Key Provisions of the Act

1. Right to Request Flexible Working:

Under the Act, every eligible employee has the right to make a formal request for flexible working. This right is available to employees who have been with their employer for at least 26 weeks. Employees will be able to make two requests in any 12-month period, compared to the current position which only allows for only one.

2. Employer's Obligations:

Employers must consider all flexible working requests in a fair and reasonable manner. They are obligated to respond to the request within two months and can only reject the request for one of eight legitimate business grounds. Those being:

  • The burden of 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 employee proposes to work
  • Planned structural changes

3. Appeals Process:

The Act does not require an appeals process which conflicts with the advice in the ACAS Code; given the conflict, my advice to employers is to include some form of appeals process within your Policy.

4. Promoting Open Dialogue:

The Act encourages open communication between employers and employees, and employers are obliged to consult with the employee before making a decision. However, there is no minimum standard of consultation or set period in which to consult. Furthermore, there is no longer a requirement for employees to set out in their application, the effect they believe the request is likely to have on their colleagues. My advice would be for employers to hold at least one meeting with any employee making a request which should satisfy the obligation as well as fostering good relationships with your staff.

Benefits for Employees

The Employment Relations (Flexible Working) Act 2023 brings numerous benefits for employees:

1. Improved Work-Life Balance:

Flexible working arrangements enable employees to better manage personal and family commitments, leading to improved overall well-being and reduced stress levels.

2. Increased Productivity and Engagement:

When employees have the flexibility to work in ways that suit their preferences and life circumstances, they are more likely to be motivated, engaged, and productive.

3. Enhanced Retention and Attraction:

The Act enhances the attractiveness of employers who embrace workplace flexibility, contributing to higher employee retention rates and increased appeal to potential talents.

Benefits for Employers

The Act and flexible working generally offer several advantages for employers as well:

1. Talent Attraction and Retention:

Businesses that offer flexible working arrangements are likely to attract and retain a diverse pool of talent, contributing to a more dynamic and innovative workforce.

2. Boost in Productivity:

A workforce that enjoys a better work-life balance is likely to be more productive and focused during working hours.

3. Positive Employer Branding:

Employers who actively support flexible working are seen as progressive and employee-centric, leading to a positive employer brand image in the market.

The Future of Work: Embracing Flexibility

As the workplace landscape continues to evolve, employers are being forced to adapt and accommodate new and different ways of working, but that doesn’t have to be a bad thing. As set out above, there are advantages to employers and an employer can turn down a request for one of the eight permitted reasons.

As I regularly advise my clients, if you have a genuine reason for refusing a request, it will fit into one of the eight reasons. Employers should be encouraged to think outside the box, encourage flexible working where it works, but at the same time – do not be afraid to reject a request if it is not going to work for your business.

Given that the right to request flexible working from day one of employment featured throughout the consultation, I would not be surprised if it were to be introduced at some point in the future, so watch this space!

Actions For Employers

It will be necessary for all employers to amend their Flexible Working Policy once the Act becomes law. My advice is for employers to start amending their Policy now, so that they are ready to introduce the new Policy as soon as the changes take effect.

Failing to have an up-to-date Policy will lead to confusion for both employees and managers handling requests, plus it increases the risk of successful claims from employees who are not satisfied with their employer’s response to a request.

If you require assistance or support updating or introducing a Flexible Working Policy and or discussing your flexible working strategy, please contact me on jtwine@wolferstans.com or call me on 01752 292351.

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