What are the key flexible working changes?
The ERFWA outlines the changes in detail but there are some key changes coming:
- Allowing employees to make two flexible working requests (rather than one) in any 12-month period.
- Requiring employers to consult with employees before rejecting a request.
- Removing the requirement for the employee to explain what impact their requested change would have on their employer.
- Reducing the default timeframe for an employer to respond from three months to two months.
Flexible working will become a ‘day-one’ right. The requirement for an employee to have at least 26 weeks of continuous employment by the date of the request will be removed by secondary legislation by the Government.
A new Acas Code of Practice
Acas have confirmed that they will be issuing an updated code of Practice in 2024 for both employees and employers when the ERFWA comes into force (which will replace the existing 2014 Code).
The updated code is expected to promote a more positive approach to flexible working, which encourages open-minded consideration and dialogue about such requests.
Acas seeks to strengthen the existing code’s good practice guidance by:
- Encouraging employers to not reject flexible working requests by default and to instead engage in open-minded dialogue with employees.
- As part of a reasonable consultation with the employee, it is recommended that a person with sufficient authority holds a formal meeting to consider their request and, where a request cannot be approved, discusses suitable alternatives.
- Suggests that employers should set out, in writing and without unreasonable delay, the outcome of their decision and, where a request has been rejected, the business reasons relied upon should be provided.
- Recommends an appeal where a request has been rejected and provides guidance on the appeal process.
- Extends the categories of those who can accompany an employee at a meeting to discuss a flexible working request to include trade union representatives (in addition to colleagues).
What should employers do to ensure compliance with the Employment Relations (Flexible Working) Act 2023?
Employers should review their existing flexible working policies ahead of the ERFWA coming into force to ensure they comply with their legislative amendments.
Naturally, employers should also prepare for a likely increase in the number of flexible working requests received.
On a practical level, employers can establish a process to formally meet with employees who issue requests or establish templates to enable them to respond to requests in a timely manner and with the recommended level of detail.
Under the ERFWA, employers could still reject a flexible working request on subjective grounds. There is a risk that rejection of the requests could result in indirect discrimination claims where the requests are not treated fairly and consistently.
Flexible working has inevitably been an important issue for employees in recent years and has gained further momentum following COVID-19. Employees would have therefore gained awareness of the upcoming changes from the publicity surrounding the developments in this area.
Natalie Abbott, Employment Law Partner at Rothera Bray Solicitors
www.rotherabray.co.uk
For advice on dealing with flexible working requests, implementing a flexible working policy or general advice on how to prepare for these forthcoming changes, please call our Employment Team on 03456 465 465 or email enquiries@rotherabray.co.uk
Disclaimer: This blog is for information only and does not constitute legal advice. If you need legal advice, please contact us on 03456 465 465 or email enquiries@rotherabray.co.uk to get tailored advice specific to your circumstances from our qualified lawyers.
