Alex Watson, Partner and Employment Lawyer at Fieldfisher unpicks new regulation around flexible working.
The changes to flexible working legislation, with the enactment of the Employment Relations (Flexible Working) Act 2023, should hopefully not come as a surprise to many as these changes have been mooted for a number of years.
CREDIT: Hayley Blackledge/Alamy
The main changes of note are the granting of ‘day one rights’ – so the ability to make a request from day one of employment, removing the previous 26 weeks of service required to be eligible to make a formal request. The changes will also permit employees to make two requests in a 12-month period, instead of one, and the reduced timeframe for employers to make decisions within 2 months – with an obligation to consult with the employee. Gone too is the requirement for employees to detail how their request would impact the employer.
While these changes may cause some concern for employers, the practical reality in a post-Covid world is that employers have been faced with increased requests from their workforces – whether informally or formally under the legislation. While the statutory framework for formal flexible working requests has become more expansive, faced with recruitment and talent acquisition and retention challenges many employers already offer flexible working practices, often from the start of employment as work flexibility becomes an increasingly important factor for employees.
Viewing these changes from a health and safety lens, embracing this new way of working where it works for the business, can also bring many positives to employers. Flexible working can reduce stress, allow employees to manage work-life balance better and lower the risk of workplace accidents or injuries due to fatigue or over-working. However, with flexible working, employees must ensure they still meet health and safety requirements. For instance, if health and safety training occurs at set times, arrangements should be made for those with differing schedules to access necessary training. Similarly, if flexible working entails more remote or home-based work, it’s essential to ensure these environments also adhere to health and safety standards and employees have the right equipment and access to support.
It remains to be seen how the changes from 1 April impact employers, but we anticipate that the effect should be nominal. Employers who currently ignore or refuse such requests still face risk of employee dissatisfaction and claims of discrimination under the current statutory regime, so these changes are unlikely to cause a seismic shift.
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