Flexible Working Legislation Update

Increased and improved rights for workers to ask for flexible working arrangements have been the subject of various campaigns for some time and gained real traction during the pandemic when many employers were forced to try new and alternative ways of working.

In response, The Flexible Working (Amendment) Regulations 2023 (the Regulations) has now passed through Parliament but critics are quick to point out that this does not do much to improve the position of workers or to address the perceived deficiencies in the current regime.

What changes will the Regulations bring into effect?

The Regulations do enable employees to make two flexible working requests in any 12-month period (currently, they are only legally entitled to make one). It reduces the period for employers to deal with requests from three months to two (unless an extension is agreed).

The Regulations also state that employers must ‘consult’ with the employee who is making the request before they can refuse it (but does not specify what that consultation process requires) and the current requirement that employees have to explain what the likely effects of their request being granted would be and how this might be dealt with is removed.

Day one right

There has been much talk about the right to request flexible working becoming a ‘day one right’ (i.e. that employees can make a request straightaway). The Regulations do not address this and therefore the current requirement of 26 weeks’ service before any application can be made will remain. The Government has indicated that it does still intend to address this but there is no mention of it in the Regulations.

Issues with the current regime

The flexible working process, even with the changes made by the Regulations, still only requires employers to go through the motions of a process and to give a stock response as to why flexible working cannot be accommodated, if the employer intends to decline the request. In most cases, employees are left without any rights of redress as long as their employer ticks all the relevant process boxes (or if they do want to pursue it further, they need to show some sort of unlawful discrimination to do so). Commentators have repeatedly stated that unless the employer has to justify its decision to decline any requests, some employers just won’t entertain any requests.

Comment

Employers will need to review their flexible working policies to ensure that they meet the requirements of the Regulations.

Employers should also consider their approach to consulting over flexible working requests, as whilst the Regulations might not specify what this should look like, in reality, good employee relations require that employees are given a chance to have their say and to have that considered before any request that they make is rejected.

Further, employers that are struggling to recruit or retain staff might want to think about whether their approach to flexible working might go further than these minimum statutory requirements in an attempt to improve their offering to employees and potential employees.