New employment laws expected to come into force in 2024 include the Industrial Relations (Flexible Working) Act, which received Royal Assent and came into force on July 20, 2023. Although a formal implementation date has not yet been set, the new law is already in effect. The law is expected to come into force in April 2024. From this point onwards, employees across the UK will have more flexibility to decide where, when and how they work. Employees will:
- gained the right to make two requests for flexible working within a 12-month period, whereas previously they could only make one such request; And
- You no longer have to explain how your employer might deal with the effects of your flexible working request.
Likewise, employers will:
- must now consult their employees before rejecting a request for flexible working; And
- be required to respond to a flexible work request within two months, one month shorter than the existing requirement.
From 6 April 2024, under the Flexible Working (Amendment) Regulations 2023, tabled in Parliament on 11 December 2023, employees will also have a new right to request flexible working from the first day of a new job, eliminating the 26-week waiting period before an application can be submitted. The measures will be supported by a statutory code of practice which is currently being developed in consultation with Acas, the body which provides free and impartial advice to employers and employees on rights, rules and best practice in the workplace. This article examines the potential opportunities and implications of the new flexible working rules for employers.
What can be requested?
Employees who meet the requirements to apply to their employer for flexible working hours can submit applications to the following address:
- reduce their working hours to work part-time;
- change their start and end times;
- Have flexibility in start and end times (sometimes referred to as “flex time”);
- do their work over fewer hours (“compressed hours”);
- working from home or elsewhere all or part of the time (“remote work”); and or
- share your job with someone else.
Such changes can be requested for any business day; only certain days or shifts; only certain weeks (e.g. during school hours); or only for a limited time.
Access a larger talent pool
Using the slogan “Happy to Talk Flexible Working” in job advertisements will certainly open up your recruitment to a larger talent pool and help create a more inclusive workplace. The Chartered Institute for Personnel Development (CIPD), which has long championed flexible working, suggests that employees with greater flexibility report higher levels of job satisfaction, wellbeing and performance in their roles.
There is no doubt that for many SMEs, the key to resilience right now is maintaining a sense of employee satisfaction and becoming an “employer of choice” by recruiting and retaining the best people. This can be achieved through a benefits strategy and flexible working is certainly part of this offer. Job seekers are increasingly looking for jobs with flexible hours, which are more popular than four-day work week arrangements, according to staffing agency Reed.
Do the new measures go far enough?
Some commentators have pointed out that the new flexible working measures may not make a significant difference to either employees or employers because some of the legislative reforms advocated by many organizations have not been implemented. For example, the legal reasons for rejecting a flexible work application remain unchanged. Employers may still reject a request for flexible working for any of the following reasons:
- the burden of additional costs;
- adverse impact on the ability to meet customer demand;
- Inability to reorganize the work of existing personnel;
- inability to hire additional staff;
- adverse impact on quality;
- adverse impact on performance;
- inadequacy of work during the periods in which the employee wants to work; and or
- planned structural changes.
The consultation does not have to be substantive
Once an employee has made a request for flexible working, there is no minimum timeframe for the required consultation with their employer and the new law does not specify that it must be a “substantive process” (nor does it provide any further detail as to what). includes such consultation). lock in). Employers therefore appear to be completely free to determine the nature, duration and content of the consultation. Although it is not a legal requirement for employers to properly consult employees about every outcome, taking the time to talk to them about how you arrived at this decision and what it was is a small step that can be helpful Thought processes required when considering their application Minimize the risk of harm and maintain good relationships with employees.
Claims of sex discrimination
The right to request flexible working hours from day one still needs to be regulated in secondary legislation, so for now employees can only apply if they have been on duty for 26 weeks continuously. While it should not be too difficult for employers to attribute a denial to one of the permitted reasons, the potential problem of indirect claims of gender discrimination remains.
These could arise if, for example, the requirement to work full-time applies equally to men and women, but as more women have childcare responsibilities, fewer women than men are likely to be able to meet the required work patterns or working hours.
So if the reason for wanting flexible working hours is childcare responsibilities and the employer refuses, the employee may have no choice but to resign. She could then consider making a constructive unfair dismissal claim based on indirect sex discrimination (and because constructive dismissal is discriminatory, two years’ continuous service is not required).
The burden of proof then lies with the employer, who must demonstrate that their decision was proportionate within the law and that the advice, although not substantive, was certainly serious. Any decision to reject a request for flexible working must be based on a valid justification.
Preparing for the new flexible working measures
With this in mind, employers should take steps to prepare for the new flexible working measures, such as:
- Update flexible working policy to remove the requirement for 26 weeks of continuous service before a flexible working request can be made;
- Ensuring flexible working policies and procedures are reviewed in light of the most current Acas Code of Practice and guidance;
- Develop clear management guidelines for the process of assessing requests for flexible working arrangements; And
- Ensuring that managers are trained to adapt to the new legislation.
Motion Paradox’s team of start-up lawyers, based in London and Los Angeles, can provide you with legal advice and guidance on all aspects of employment law to ensure your business recruits and retains the right people to make your business more resilient, scalable and to make it more profitable.
