What does the Flexible Working Bill mean for Employers?

Posted on July 25, 2023

Employers and their HR managers need to make sure they are up to speed on the changes about to become law when it comes to flexible working requests.

Employment Law Changes 2023

The right to request flexible working was introduced under the Employment Act 2002 and came into force in April 2003. Now as part of a raft of employment law changes the Employment Relations (Flexible Working) Bill 2022-23 will extend the right to request flexible working to all employees, alongside a list of other measures.

Employees can make a request for flexible working.
They can make two flexible working requests a year – currently they are only allowed one request in any 12 month period.
As an employer you must consult with the employee if you are going to be rejecting their flexible working request.
The Bill also removes the requirement for your employees to set out how their employer might deal with the effects of that request.

Flexible working requests

“With things being made a little easier for employees as a business owner you must be up to speed with the changes and how they affect you and the running of your business. A flat right refusal will land you in the employment tribunal and so it makes sense to keep up to date as you could see an increase in the number of requests being made,” advises Susan Mayall, Partner and Employment Law Solicitor at Pearson Solicitors.

“My advice to employers is to consider any flexible working requests with an open mind and enter into meaningful dialogue with the employee requesting in order not to fall foul of discrimination laws,” she adds.

“Sex discrimination could come into play here with female staff returning from maternity leave and requesting a change to their working patterns. Disability discrimination is another point, employees may be wanting to work fewer days as a result of injury or medical condition,” warns Susan Mayall.

“In addition it is wise to also consider that in some cases requests may be made for religious beliefs and this should form part of the decision making process.”

Discrimination laws protect against the detrimental treatment of those with a protected characteristic, as mentioned sex, disability and race, being just some, so we could see the challenges of flexible working and discrimination coming into play here.

Flexible working and changes to how we view the workplace undoubtedly changed during the pandemic as we all adapted to working from home and it became more mainstream, although flexible working is broader than either just working remotely for some, or part of the time, and employers need to be aware of this.

“I always advise keeping channels of communication open, as enabling and allowing employees to work at times convenient to all may in fact make the employee more productive. However, employers still regularly run into trouble when responding to requests which can give rise to claims of discrimination and/or constructive unfair dismissal, as well as a failure to follow the procedural requirement relating to requests,” says Susan.

How employers should respond to Flexible working requests

Respond to any requests within two months.
Discuss with your staff member how the request would work in practice and identify any challenges.
Employees can ask for a variety of flexible working options; including job sharing, working from home, compressed hours, part-time and flexitime working, as well as staggered hours.
Make sure you note all meetings and the decision-making process and record the new work pattern and any impact on pay, holidays, benefits and pension.
Be consistent, reasonable and if the request is turned down explain why it not possible and back this up with evidence. Or perhaps accept it on a trial basis and set a review date. You also have to consult with your employee before rejecting a flexible working request.
If you do not agree to the request in full. Whilst a right of appeal is recommended in the ACAS Code of Practice on Flexible Working it has not been a requirement of the process.
It is worth remembering that part-time workers have the right not to be treated less favourably under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

“Of course employers should also note that this is only a request, it is not an automatic right and the impact on the business and its performance is of course your ultimate concern. Employers can legally tell employees where they'd like them to work and can state “good business reasons” to prevent working from home and of course for some jobs working from home is not possible,” adds Susan

“But it’s of course it’s not just working from home, given the proposed changes to the law, you may need to update your existing employment policies and consult with HR, and remember all changes must be communicated to the managers, team leaders and staff, essentially it’s a good time for employers to remember that the tribunal can be costly, but it can be avoided.”

Above all else a happy work force is a productive team and being a flexible employer helps with staff retention, absences and can help with potential recruitment so it can be seen as an opportunity for proactive employers.

This is part of a wider employment law shake up. The Employment Relations Bill (Flexible Working) has completed its final stage in the House of Lords and now only requires royal assent before becoming law.

How can we help

If you an employer or HR manager in need of employment law advice contact our employment law solicitors on 0161 785 3500 or email enquiries@pearsonlegal.co.uk

Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers Ltd or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.