The corporate landscape is set to undergo a significant transformation with the extension of flexible working rights to all employees from their initial day of employment, starting April 6, 2024. This marks a pivotal shift from the current prerequisite of 26 weeks’ continuous service, broadening the scope of flexible working arrangements that were initially introduced in 2003 exclusively for working parents and carers.

A recent survey conducted by Acas highlights a notable uptick in remote working practices, with 30% of employers reporting an increase in the past year. This trend underscores the burgeoning contribution of flexible working to the UK economy, estimated at £37 billion annually.

Eleanor Rogers, a Solicitor in Furley Page’s employment law team, comments on the post-pandemic landscape, noting the diversification of flexible working into hybrid and agile models. Rogers emphasises the significance of adaptability in the workplace, covering not only the locus and schedule of work but also innovative role execution methods like job-sharing.

“Post-pandemic, flexible working is far more common and takes many forms including hybrid and agile working.  Flexibility includes when and where employees work and how roles are performed, such as by job-sharing. The Acas Code of Practice states that the default position should no longer be to reject requests and employers must follow the statutory process or risk discrimination claims, financial penalties and damage to recruitment and retention.  For example, Working Families’ research shows that 55% of working parents in the UK would consider leaving their job for another role that offered better flexibility. From 6 April 2024, the right to request will become a ‘day-one’ right, meaning employees no longer have to wait until they have six months’ service with an employer before being eligible to make a request.” 

Eleanor Rogers – Solicitor, Furley Page

The Acas Code of Practice now advises employers against the automatic dismissal of flexible working requests, urging adherence to the statutory process to avoid potential discrimination claims, financial repercussions, and adverse impacts on recruitment and retention efforts. This change is underscored by Working Families’ research, which found that 55% of working parents in the UK would contemplate a job change for better flexibility.

The forthcoming Employment Relations (Flexible Working) Act 2023 introduces additional modifications, effective from April 6, 2024. These include mandates for employer-employee consultations prior to request rejections, expedited decision timelines, and the removal of the requirement for employees to justify their requests in terms of impact on the employer.

Key amendments under the new act include:

• The entitlement to request flexible working from the first day of employment.
• The allowance of two requests per year, subject to conditions.
• A reduction in the response time to two months, with possible extensions upon mutual agreement.
• The elimination of the necessity for employees to outline the potential impact of their request and mitigation measures.
• The introduction of a mandatory consultation phase before deciding on a request, to thoroughly explore all options and reasons for any rejection.

Failure to adhere to these processes can lead to claims at an Employment Tribunal, with the risk of uncapped compensation for proven discrimination, and in cases related to disability, potential failures in making reasonable adjustments as per the Equality Act 2010.

While the universal embrace of flexible working may vary among employers, compliance with the revised procedures is crucial to mitigate the risks of Tribunal claims and foster employee engagement. Furley Page’s Employment Team stands ready to assist organisations in updating their policies, ensuring alignment with the latest legislative requirements and minimizing potential legal and operational risks.