The Employment Relations (Flexible Working) Act 2023

Over the course of the pandemic, many of us in regular employment had, for perhaps the first time, the opportunity to partake in what is now deemed ‘flexible working’. This meant that for at least a portion of the week, employees could work from home, given the requisite tools to do so. Many businesses have never looked back. Now, The Employment Relations (Flexible Working) Act 2023 is set to usher in a new era of workplace flexibility in the country, with its provisions granting employees increased access to flexible working arrangements and requiring timely responses from employers[1]. The Act promises to promote work-life balance and overall employee well-being. In this article we will explore the key aspects of the Act and shed light on its potential impact on the UK workforce, and, in particular, employers themselves.

Background and Purpose of the Act

The Employment Relations (Flexible Working) Act 2023 builds upon previous legislation related to flexible working rights and aims to address the changing dynamics of modern workforces. It seeks to enhance employees’ ability to balance the personal with the professional, and, by doing so, encourage a culture of trust, openness and, well, flexibility!

Two Requests per Year: Empowering Employees

One of the more pivotal provisions of the Act is the empowerment of employees to make up to two flexible working requests in any 12-month period. This marks a significant improvement from the previous law, which permitted only one request in the same timeframe. The aim is, quite simply, to bolster the choices that employees are able to make.

This change, while it may seem relatively small on the surface, could have huge ramifications for employers. With the upcoming changes to the law, employees will have twice the chance to file a request, and therefore, businesses must be twice as vigilant in making sure that either have reasonable grounds to refuse or that preparations can be made in advance of any request. Any request for flexible working hours shouldn’t be considered in isolation: instead, the minutiae must be taken into account so that claims of discrimination cannot be made after a request is refused.

Take the following example: a case that involved a refusal to accept a flexible working request: Thompson vs Scancrown Ltd T/a Manors ET/2205199/2019[2].

In this case, Mrs Alice Thompson worked for a small independent estate agency firm, and, following her return from maternity leave, she had requested an alteration to her usual hours of 9am to 6pm in order to accommodate the closing time of the nursery that her child attended. Her request was to finish at 5pm instead so that she could pick up her child on time.

The business refused the request, detailing five business reasons for their decision. After their decision, Mrs Thompson resigned and filed several claims, including indirect sex discrimination.

The tribunal agreed with the indirect discrimination claim on the grounds that the business’s failure to consider this flexible working request put the claimant at a disadvantage, and one which pertained to her sex. While the business’ concerns were considered, they were considered to be outweighed by the issues presented by Mrs Thompson.

This case highlights the importance of employers having genuine and valid business reasons for refusing flexible working requests. It also emphasizes the need for employers to consider such requests carefully and be prepared to justify their decision if challenged. While employees have the right to request flexible working, it does not guarantee automatic approval, and employers can refuse the request if there are legitimate business grounds for doing so. As a result, businesses should be especially considerate to each request’s specific set of circumstances to avoid complications.

Timely Responses: Encouraging Prompt Decision-Making

The Act also requires employers to respond to flexible working requests within two months of receiving them, down from three under the previous structure. This provision aims to expedite the decision-making process and provide employees with timely feedback, reducing uncertainty and promoting transparency. 

A study conducted by the Chartered Institute of Personnel and Development (CIPD) found that over 40% of employees who had previously requested flexible working arrangements reported that their employers took more than two months to respond[3].

With the implementation of the Employment Relations (Flexible Working) Act 2023, employees can expect quicker responses, improving their overall experience and satisfaction. As a corollary, employers must be increasingly vigilant that any such requests are dealt with promptly and effectively, and make it a priority to deal with rather than a minor distraction to be ignored. As ever, care and attention is key.

Removal of Impact Explanation: Simplifying the Process

Under the Act, employees are no longer required to explain the impact of their flexible working request on their role and how any potential implications would be managed or mitigated.

This streamlining of the process aims to reduce bureaucratic barriers and make it easier for employees to seek flexible working arrangements. Under the previous legislation, the emphasis was very much on the employee requesting flexible working to justify the changes; under the new act, the balance has shifted, and it will be down to employers to consider what affects any changes may have on the business. To this end, it will be ever more pertinent for management to anticipate changes in advance, and seek to minimise their impact pro-actively.

Another comprehensive study conducted by the London School of Economics and Political Science (LSE) found that the requirement to provide detailed impact explanations in flexible working requests often deterred employees from making such requests[4]. Removing this requirement can encourage more employees to seek flexible working arrangements, leading to increased work-life balance and job satisfaction.

Consultation Requirement: Fostering Open Communication

An all-new requirement that comes as part of the legislation is that managers must now engage in consultation with the staff member before refusing a flexible working request. This requirement ensures that employees’ requests are given proper consideration, and employers have an opportunity to discuss possible alternatives.

This mechanism is particularly useful in creating an environment wherein employers and employees alike feel as if they can discuss their circumstances in an open and honest manner to reach an amicable resolution, and it means that, in the long run, businesses are fall less likely to fall foul of any claim.

Absence of Day-One Right to Request

While there were discussions about granting employees a day-one right to request flexible working, the final Act does not include this provision. As a result, employees will still need to complete 26 weeks of service with their employer before they can make their first flexible working request. After all, it’s a bold start to your new job to change the terms of your employment before you’ve even taken your coat off! Thankfully, the government saw sense in this regard and still gives employers some guarantee about what they can reasonably expect.

The Office for National Statistics (ONS) reported that in 2021, the average length of time an employee stayed with their employer was around five years[5]. Therefore, the majority of employees would likely have the opportunity to make at least one flexible working request during their employment tenure, if not far more.

Potential Impact on the UK Workforce

The Employment Relations (Flexible Working) Act 2023 has the potential to bring about radical new changes in the quality of life for workers and employers across the country:

1. Enhanced Work-Life Balance: With increased access to flexible working arrangements, employees can better balance personal and professional commitments, leading to reduced stress and improved well-being.
2. Increased Job Satisfaction and Retention: The Act’s provisions are likely to lead to greater job satisfaction and increased employee retention rates as employees feel valued, trusted and supported in managing their work and personal lives.
3. Improved Productivity: Studies have shown that employees with flexible working arrangements are often more productive due to reduced commuting times and increased job satisfaction[6].
4. Diversity and Inclusion: Flexible working options can attract and retain a more diverse talent pool, promoting a range of perspectives and opinions from people across a whole range of personal circumstances, thereby allowing the business to gain access to new, fresh ideas.
5. Cultural Shift: Indeed, the full embracing of flexible working means a marked shift away from the tried-and-true 9-5 most of us are used to. Staff across the board may need to adjust their attitudes, expectations and the way in which they go about their work as a whole in order to maximise benefit.

Potential Impact on Employers

1. Increased Administration: While the changes stand to benefit employees in myriad ways, the Act will inevitably lead to an increased workload in terms of admin costs as paperwork, documentation and processes change to suit the new environment we all find ourselves in.
2. More Operational Adjustments: In the same vein, new tools and technology may well be necessary to accommodate these new changes. Who could forget the meteoric rise of Zoom during the pandemic? Once the Act is drawn fully into law, expect similar tools to find their niche.
3. Potential Challenges to Team Cohesion: A more diffuse, disparate workforce may well have benefits for some, but the impact it has on a businesses’ ability to work as a team is not yet fully explored. Perhaps with the new tools on the horizon these difficulties may be mitigated, but regardless, employers need to recognise the need for open avenues of communication now and plan ahead accordingly.
4. Legal Difficulties: Non-compliance with the new Act can and will lead to potential legal difficulties. Employers must get to grips with the specifics to avoid falling foul of the law.
5. Out-of-Date Productivity Metrics: With different working conditions comes different outcomes, and it may well be incumbent upon managers to ensure that their measurements of performance align with the new zeitgeist.

Conclusion

All in all, the Employment Relations (Flexible Working) Act 2023 represents a significant step forward in shaping the future of work in the country. By granting employees increased access to flexible working arrangements and mandating timely responses from employers, the Act seeks to promote work-life balance, improve wellbeing, and promote a more welcoming and productive workforce.

This exciting new piece of legislation looks to create a positive impact on everyone in the world of business, and shows that the UK still has much to offer in leading the way in the world of work. That said, it may pose significant challenges for employers, who must, as ever, remain agile in this ever-changing scenery.

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[1] UK Government. (2022-23). Employment Relations (Flexible Working) Act 2023.https://bills.parliament.uk/bills/3198

[2] Thompson vs Scancrown Ltd T/a Manors ET (2019). Thompson v Scancrown Ltd: Refusal of flexible working request amounted to indirect discrimination. https://www.parklaneplowden.co.uk/thompson-v-scancrown-ltd-refusal-of-flexible-working-request-amounted-to-indirect-discrimination/

[3] CIPD. (2023). Flexible and Hybrid Working Practices in 2023.https://www.cipd.org/uk/knowledge/reports/flexible-hybrid-working-2023/

[4] London School of Economics (LSE). (2022). Flexible Working Policy and Procedure.https://info.lse.ac.uk/staff/services/Policies-and-procedures/Assets/Documents/fleWorPolPro.pdf

[5] ONS. (2021). Employment in the UK: September 2021. https://www.ons.gov.uk/employmentandlabourmarket/peopleinwork/employmentandemployeetypes/bulletins/employmentintheuk/september2021

[6] Castrillon, C. (March 23^rd 2022). Why Flexible Work Boosts Employee Productivity – Forbes.https://www.forbes.com/sites/carolinecastrillon/2022/03/23/why-flexible-work-boosts-employee-productivity/