What is the Employment Relations (Flexible Working) Act 2023?

In 2023, the UK government passed a new bill that changed the way employees work. The Employment Relations (Flexible Working) Bill aims to give employees additional rights to request flexible working arrangements from their employers, changing the way businesses operate and how employees balance their work and personal lives.

Flexible working – the backstory

Since The Flexible Working Regulations 2014 came into force, employees have the right to request changes to their employment contract terms relating to their hours, times and place of work to enable flexible working, such as working from home or having flexible start and finish times.

All employees have the legal right to request flexible working, and such requests are known as ‘making a statutory application’.

Under that legislation, employees had to have worked for the same employer for at least 26 weeks to be eligible.

In 2021, the government ran a consultation on ‘Making flexible working the default.’ The outcomes of the consultation were published in December 2022, including plans to introduce the Employment Relations (Flexible Working) Bill.

What is the Employment Relations (Flexible Working) Act 2023?

The Employment Relations (Flexible Working) Act 2023 is legislation that came into effect from 1st April 2024. It aims to give employees greater access to flexibility over where, when and how they work.

In particular, employees are able to request flexible working from day one of their employment, rather than only being permitted after 26 weeks in their role.

The act amends the Employment Rights Act 1996 to change the current right to request flexible working in the following ways:

• Removing the requirement for employees to explain in their request what effect they think it will have on the employer and suggest ways to mitigate them;
• Allowing employees to make two flexible working requests in any 12 month period instead of the one currently allowed;
• Prohibiting employers from rejecting an application without having discussed the flexible working requests and explored other options with employees; and
• Reducing the deadline for an employer decision on flexible working requests from three months to two months.

The law applies to England, Scotland and Wales.

Notably, the government considers that the onus is on employers to design flexibility into roles, recruitment processes and work arrangements, rather than putting the onus on employees in the first days of their job. However, this is not prescribed in the legislation. More guidance will follow.

Why do we need flexible working legislation?

According to the CIPD’s #Flexfrom1st campaign, research revealed that flexible working practices were not fair, with 46% of British employees saying they didn’t have access to flexible working arrangements as part of their current role.

Research carried out by Reed found that job seekers were increasingly searching for vacancies offering flexible working, which were reportedly more popular than four-day week working arrangements.

Our own research, carried out in 2022, found that flexibility is here to stay, and wellbeing is a top priority. 88% of knowledge workers would work remotely at least one day per week. The top two reasons that employers continue to support remote working are improved wellbeing and happiness.

But with employees prevented from making more than one request in the space of 12 months, and with considerable onus on the employee to explain what effect their request might have on the employer and how to mitigate it, more was needed. Both the Conservative and Labour parties pledged to expand flexible working rights in their 2019 manifestos.

The Bill’s sponsor, Yasmin Qureshi, believes it will ensure that more people can access flexible working and act as a catalyst to address the barriers faced by women, the disabled, carers, and older people.

How have government and industry figures reacted to the Employment Relations (Flexible Working) Bill?

The CIPD has been campaigning to make the right to request flexible working a day one right since 2020. Peter Cheese, chief executive of the CIPD, said the bill will help “normalise conversations about flexibility at the start of the employment relationship, with significant benefits for employees in terms of wellbeing and work-life balance”. Claire McCartney, senior policy adviser at the CIPD, said it would “open up opportunities more fairly” for all employees, “including those who aren’t able to work remotely”. 91% of respondents to the government’s consultation, including large employers, were in favour of the ‘day one’ right proposal. But not everyone agreed. Small businesses in particular were concerned that such early conversations could lead to friction if the employer denied a request or was forced to renegotiate contracts immediately after someone had started work.

The right to request flexible working is not a ‘right to have’ flexible working, and employers retain the right to reject a request on one of the eight existing business-related grounds. 63% of employer respondents felt that this was the correct approach, while some considered that the reasons should be expanded to give business priorities greater protection.

People Management also polled HR and legal experts to determine what impact the bill might have, finding that many praised the change in law, but warned it could take time to fully bed in.

Should employers encourage flexible working?

All the evidence points to the fact that flexible working has so many benefits for employers and employees alike. Employers who encourage flexible working can benefit from increased job satisfaction, productivity, and work-life balance among their employees. Additionally, offering flexible working arrangements can help businesses attract and retain top talent, leading to a more diverse and inclusive workforce.

One of the benefits of flexible working is increased job satisfaction as employees are able to balance their work and personal commitments more effectively. This can lead to a happier and more motivated workforce, which is likely to be more productive and engaged. Moreover, employees who are given the opportunity to work flexibly are more likely to feel valued and trusted by their employer, which can lead to greater loyalty and commitment.

It can also boost productivity for businesses. By allowing employees to work when and where they are most productive, employers can ensure that their workforce is making the most of their time. For example, employees who are able to work from home may be able to avoid long commutes or work outside of traditional office hours when they are most productive. This, in turn, can lead to increased output and better results for the business.

While there are challenges for employers to overcome in managing a flexible workforce effectively and maintaining a sense of team spirit and collaboration, the benefits of flexible working are clear. Employers who are able to adapt to the changing needs of their employees and offer flexible working arrangements will be better placed to attract and retain top talent, increase productivity, and create a more diverse and inclusive workforce.

How can employers prepare for flexible working requests?

One of the first steps is to invest in new technology that can facilitate remote working. Besides a shiny, new, fit-for-purpose HRIS system, other tech upgrades might include providing laptops or tablets to employees so that they can work from home, ensuring that all necessary software and applications are available remotely, and setting up secure networks for remote access. By investing in the right technology, employers can ensure that their employees can work effectively from anywhere, without compromising on productivity or security.

Another important step is to develop new policies that ensure all employees are treated fairly and equally. This could include policies on working hours, leave entitlements, and performance targets. Employers should ensure that their policies are transparent and open to all employees, so everyone is aware of what is expected of them.

Communication is key to ensuring that all employees feel connected and engaged, regardless of their location. Employers should implement communication strategies and team-building activities to foster a sense of team spirit and collaboration among their employees. This might include scheduling regular video meetings and company-wide all hands meetings, as well as team-building events and virtual social activities.

Finally, employers should consider security measures to ensure that remote working arrangements are secure and confidential. This might include using virtual private networks (VPNs) or secure file-sharing systems to protect sensitive information. Employers should also provide training on how to use these security measures effectively, and regularly review their security protocols to ensure that they are up to date with the latest threats.

By taking these steps, employers can ensure that they are prepared for flexible working requests and can create a supportive and inclusive working environment for all employees.

Stay up-to-date with UK employment law changes

Overall, the Employment Relations (Flexible Working) Act 2023 has had a significant impact on UK employers and the nation’s workforce. While there are challenges for employers to overcome, the benefits of flexible working arrangements are clear.

By offering more flexibility, businesses can attract and retain top talent, increase productivity, and create a more diverse and inclusive workforce.

The Employment Relations (Flexible Working) Act 2023 is a step towards creating a more modern and flexible working environment in the UK, benefiting both employees and employers.