EMPLOYMENT LAW

What are the changes to flexible working requests in 2023?

Changes are set for flexible working in 2023.

The government recently passed new laws that will make it easier for employees to request flexible working arrangements. These new laws are expected to come into effect later in 2023 and will expand the right to ask to work flexibly.

The upcoming law will introduce a number of changes to the current flexible working framework. For more details about the current flexible working regime, see our Flexible Working home page.

What are the new laws for flexible working requests?

One of the key changes that had been expected was that employees would be able to request flexible working on day one of their employment. This would be a significant shift from the need to have worked for 26 weeks before being entitled to ask to work flexibly. It would mean that you could ask your employer for a flexible working arrangement from the very beginning of your job, or even when you apply.

However, the new Act doesn’t mention anything about being entitled to ask from day 1. It could either have made this change or could have stated that new Regulations would be made to do it. By staying silent on the point, we don’t yet know if or when flexible working will become a day 1 right. New Regulations could be made at any time. We have to wait and see for now.

One change which is being introduced is that employers will be required to consult with employees before refusing a flexible working request. Having said that, there’s no description of what that consultation has to involve. It’s not unreasonable to expect that your employer will discuss your request with you and explain why they are refusing it, or try to reach a compromise solution, but the statutory framework won’t require this.

We’d expect Acas to flesh out what would be regarded as reasonable consultation, when they update their guidance on flexible working later this year.

The new laws also remove the requirement for employees to set out the effects of their flexible working request on their employer’s business. This means that you will no longer have to work out exactly how your flexible working arrangement will impact your employer’s operations, possibly while you’re on maternity leave, away from the business and can’t be sure of how things are running at that point.

Not only this, but you’ll be able to make two flexible working applications in a 12-month period, where currently you can only make one application every 12 months. The employer will have to respond to your request within 2 months (currently 3 months).

So, will your flexible working application be more likely to be granted under the new laws? The answer is a hopeful “yes, but…”

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What reasons can an employer refuse flexible working?

The “but” is that it is important to note that employers still have the right to refuse flexible working requests. The new laws only require employers to consult with employees where they are rejecting a request. If your employer has a good reason for refusing your request, they will still be able to do so – this mechanism isn’t changing.

Here are the 8 reasons why employers can refuse flexible working requests:

The burden of additional costs.
Detrimental effect on ability to meet customer demand.
Inability to reorganise work among existing staff.
Inability to recruit additional staff.
Detrimental impact on quality.
Detrimental impact on performance.
Insufficiency of work during the periods the employee proposes to work.
Planned structural changes.

Flexible working can be refused if performance dips are anticipated.

How do you win a flexible working request?

Here are some tips for increasing your chances of having your flexible working application granted:

Check your employer’s flexible working policy and refer to it in your application.
Set out clearly in writing what arrangement you are requesting.
Explain why you need the flexible working arrangement.
Be prepared to discuss the impact of your flexible working arrangement on your employer’s business – it isn’t going to be a requirement any more, but thinking about your employer’s point of view will show that you’re thinking outside of your own individual situation – turn it round to talking about how you can continue to contribute to the business in a slightly different way.
Be persistent. If your first request is refused, don’t give up. You can appeal a rejection and can always try again later.
The trickier option is to think about raising a grievance about a rejection, but it’s best to get advice on your options before going along a route it’s hard to come back from. Remember, it’s a right to ask to work flexibly, not a right to get whatever arrangement you want.

Why do employers want flexible employees?

The new flexible working laws are a positive step for employees. But they can also be positive for employers who are willing to flex their standard arrangements in order to improve staff retention, equity and inclusion across the organisation. It’s not just women with children who want flexibility – a bit of flex can be a huge attraction to a wider range of potential candidates, including disabled people, parents (not just mothers!), younger people, older people, digital nomads – really anyone!

Employers who refuse flexible working requests out of hand, without consultation or due consideration of whether they actually do fall within one of the statutory reasons listed above, risk facing claims for discrimination, because of (for instance) disability, age, sex, religion or belief. They also risk claims for constructive dismissal.

Hopefully, this blog post has helped you to understand the new flexible working laws and how they may affect your ability to request flexible working – and also what employers will have to do to stay within the revised regime.

If you have any questions, please feel free to contact us at employment@qlaw.co.uk or on 03300 020 863.