Flexible working and the law: 4 things all employers should know

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The Employment Rights Act 1996 is currently undergoing an amendment, with changes to flexible working legislation currently in its final stages before becoming UK law.

But with many employers feeling a little nervous about the looming changes to flexible working largely driven by the demand for greater flexibility by employees and the need to revisit current working practices, we thought now would be a good time to create a brief guide on the proposed changes so that businesses can ready themselves and their current policies to avoid being on the wrong side of the law.

Here are the four key changes Employment Relations (Flexible Working) Bill 2022-23 that all employers should be aware of:

Impact on the employer

The Employment Relations (Flexible Working) Bill 2022-23 seeks to remove the requirement for employees to explain in their applications for flexible working what they think it will have on the employer.

Under the current legislation, employees must explain the impact of a change in working hours and location, but as soon as the 2022-23 Bill is passed, this will no longer be a requirement for an application for flexible working.

Two requests per annum

At present, employees are allowed to make one application every 12 months for flexible working. The new Bill will allow employees to make two flexible working requests per 12 months.

Also, employees only had the right to request a change to their working hours, times or location if they had at least 26 weeks’ continuous service. The new Bill will allow employees the right to make such a request after only a day of employment.

Decision deadlines

Employers are currently allowed a three-month timeframe to respond to a request for flexible working, but the 2022-23 Bill will fast-track the decision process for the benefit of the employee by reducing this timeframe to just two months.

Under both current and proposed flexible working legislation, due consideration must be given to each individual request and a simple ‘no’ is simply not enough to refuse an application.

If you are looking to decline an application, this must be backed up by genuine reasons and explained to the employee at the consultation stage.

Consultation process

Previously, an employer was under no obligation to consult with an employee after a request for flexible working had been refused, but the Employment Relations (Flexible Working) Bill 2022-23 will make it a legal requirement for the employer and employee to discuss the request before the employer is allowed to refuse an application.

In terms of best practice, guidance states that this consultation process should be an opportunity to explore other avenues to help support the employee and to see if a mutually beneficial agreement surrounding the request can be met.