Tessa Harris: The Government’s New Flexible Working Legislation – All Change?

With changes taking place, and subsequently coming into effect, as the new labour government settles into power, a lot of focus has been placed on employees’ rights, what those changes could be, and how they are likely to impact employers.

Changes to flexible working was a key principle laid down by Labour in their “Plan to Make Work Pay” report. So, it is no surprise that rights have been amended so quickly.

However, is it all change for employers?

Strengthening Flexible Working Laws in the UK

Several laws have resulted in employees gaining rights that they previously didn’t have, from day one of employment. The right to flexible working is no exception. The focus surrounding this has been to ensure that workers could exercise their right to flexible working, particularly those with childcare and dependent responsibilities.

Flexible Working as a Day One Right

The Flexible Working (Amendment) Regulations 2023 came into effect on 6 April 2024. With this new legislation, any employee who is employed on or after 6 April 2024 can make a flexible working request from the first day their continuous service starts.

Labour’s objective is to assist employees in accommodating their responsibilities outside of work without the need to wait 26 weeks as per the previous legislation. If the request is approved, for the employee, this could mean less juggling and more time working, than taking leave to accommodate for the responsibilities. This could contribute to an overall less stressful period for both the employee and the employer.

Another change is that employees can make two flexible working requests in a 12 month period (previously only one request could be made). This right applies to everyone with differing working arrangements regardless of whether they work part-time, from home, on compressed hours etc.

This is a clear move from the labour government to further enhance employees’ rights to allow them to effectively rethink any previously rejected flexible working request or look to add further arrangements to their working life.

Rejecting a Flexible Working Request

Employees no longer need to explain how their request might affect the employer. However, pre-empting this and establishing reasonable ways to resolve any negative impact on the employer, could assist them in approving a flexible working request. It is worth noting that employers now must respond to flexible working requests within 2 months, as opposed to 3 based on previous legislation.

What may also come as a surprise to some is that companies didn’t need to consult with employees when rejecting flexible working requests, previously. But now, employers must consult with the employee, and therefore, careful consideration needs to be made to each request.

Should an employer need to reject a request, the reasons for such are still similar to what they were before. Namely:

– Consideration of any additional costs involved; does the cost involved render the employer unreasonably out of pocket?
– What the impact is on customer demand; would the flexible working arrangement agreed upon mean that customers are disadvantaged in any way, negatively impacting the business?
– And/or is the business able to reorganise the work to accommodate the flexible working arrangement?

If the employee’s request falls under any of these headings, then arguably, so long as it is reasonably justified, an employer can still reject the flexible working request.

Overall, the purpose of flexible working is to assist workers to accommodate their work/life balance, promoting a supportive and inclusive working environment which in turn will benefit any employer’s business.

What Does This Mean for Employers?

Several employers are likely to be concerned over the impact that the new legislation will have on the day-to-day running of their company.

Certainly, the most significant change in allowing employees the right to request flexible working from day one is likely to cause some concern. It may therefore be prudent for employers to ask questions prior to an employee’s start date – whether there are any likely flexible working arrangements the employee may wish to request when they begin. This way employers can get a jump start on considering the impact of this and how it may be accommodated.

Remember, an employer must not reject an application for employment or withdraw a job offer on the grounds of an employee seeking the right to flexible working. Such action could lead to Tribunal claims being issued against the company.

Employers Must Carefully Consider Requests to Avoid Tribunal Claims

An employer must also remember that they still have 2 months from receiving the flexible working request to respond. While it is less time than what was previously allowed, it is still a reasonable amount of time to consider the request carefully whilst onboarding and introducing the new employee into the business.

As employees do not have to put forward the effect their proposed arrangement may have on the business in their request, the employer will therefore need to consider it themselves when assessing the application. Hence, from a practical perspective, those who are considering the applications will need to ensure that they have sufficient time set aside to review the request, within the two months given.

Now given that employers must also consult with employees, it would be prudent to thoroughly consider all effects, options and alternatives before rejecting any application. The more consideration an employer has given will be reflected in clear reasoning behind any rejection. This could result in employees being less likely to appeal or attempt to make a further application again.

However, ensuring that those who relay the outcome of the application understand explicitly the authorised reasons for rejection, and are able to provide sound explanations, is imperative.

Final Thoughts

There is a distinctive shift towards providing employees with more rights, than consideration towards the employer with the implementation of the new legislation. It almost seems that the burden is now on the employer, convincing the employee of the reasons for potentially rejecting an application rather than an employee convincing the employer of the viability of their application.

This certainly means that there is more work required of the employer. For smaller employers, whilst the request for flexible working may be less frequent, the impact of processing the application could have an adverse effect on capacity. Being proactive and pre-empting any applications is the first step advised to try and be ready for any that may come early on in an employee’s employment.

Ensuring that those who are considering the application have considered all alternatives, options and impacts, and understand thoroughly the new legislation is key. This will ensure employers and employees have meaningful consultations if the decision is to reject the application and allow both to understand where the other is coming from. This could mean lesser chances of an upset and an unhappy working environment.

Flexible working is a fantastic, modern way of enhancing employees’ experience at work and retaining happy and motivated employees. Hence, understanding the new legislation and educating those who would be involved in the decision-making process will result in these changes having less disruption in the day-to-day running of a business.