Experts divided as flexible working bill reaches royal assent

Many welcome the greater flexibility the new legislation will bring for employees, but some warn that it is not radical enough

Credit: Gary Burchell, Kadirkaba/DigitalVision Vectors/Getty Images

Employees across the UK will be able to seek greater work flexibility after the Employment Relations (Flexible Working) Bill passed into law last week (20 July).

The bill, first introduced by MP Yasmin Qureshi, gives employees greater access to flexibility over where, when and how they work.

Under the new law – which is expected to come into force in 2024 – employees will gain the right to make two flexible-working requests within any 12-month period. Previously they could only make one, with employers required to consult with employees before rejecting the request.

The employer decision period will also be reduced from three months to two months and the requirement for employers to explain the impact on the organisation if they switched to flexible working will be removed.

While the government said that "workers will have the right to request flexible working from day one of a new job", some have criticised that this is not explicitly stated in the bill.

People Management spoke to lawyers and HR experts for their views on whether the new measure goes far enough or falls short.

Will this legislation change be enough to make a difference?

Since February 2020, the CIPD has been campaigning for organisations and the government to make the right to request flexible working a day-one right.

During its campaign, the CIPD highlighted evidence suggesting that those who have greater flexibility report higher levels of job satisfaction, wellbeing and performance in their roles.

Furthermore, research by Reed previously found that jobseekers were increasingly searching for vacancies offering flexible working, which were apparently more popular than four-day-week working arrangements.

Employers can open up recruitment to “wider talent pools” and create “fairer and more inclusive workplaces” by using the tagline “Happy To Talk Flexible Working” in job advertisements, according to Peter Cheese, chief executive of the CIPD and chair of the government’s Flexible Working Taskforce.

He says this transparency encourages workers to ask for flexibility and helps to normalise the conversation for all groups.

Susan Clews, Acas chief executive, says there has been a “global shift and changed attitudes towards flexible working” and it has allowed more people to “better balance” their working lives. “Our new draft code encourages employers to take a positive approach to flexible working and addresses all the new changes in the Act,” she adds.

As reported in a previous People Management article, Acas’s new draft code consultation will replace the current code, published in 2014, in order to reflect the significant movement in flexible working globally.

Where it falls short

According to Caroline Phillips, senior associate at Fladgate, the bill appears to be a “bit of a mixed bag, almost seeming to give on the one hand and take away on the other”, emphasising that the difference to either employees or employers is unlikely to be “substantial”.

While there are some "notable changes", some of sought after legislative reforms have not materialised, explains Phillips.

"The eight statutory grounds for refusing a flexible working request will not change. Also, making the right to request flexible working a 'day one' right is to be dealt with in secondary legislation," she says.

"For now, employees will still only be able to make requests once they have completed 26 weeks’ continuous service."

A recent People Management article found half (49 per cent) of UK workers would take advantage of the new day-one flexible rights when the law comes into effect. The survey of 4,000 people by Timewise also revealed that almost a third (30 per cent) were not sure if they would request it.

Danielle Ayres, employment law partner at Primas Law, says that while the legislation attempts to enhance working conditions for all and is “undoubtedly positive”, the flexible-working bill “does not go far enough” for employees or their employers.

She explains that while it is great that employees will have “increased opportunities” to request flexible working hours within a year, the “lack of procedural requirements” from an employer’s perspective may leave them open to grievances if the proper procedures are not in place or followed.

In addition, Katherine Gibson, employment partner at DLA Piper, says the new legislation makes some adjustments to the way flexible-working requests will work in practice and the changes are “sensible” and “practical”, but it falls short of the much-“publicised aim” of making flexible working the “default” for all.

However, she adds that the bill does go some way to making it easier in practice for both employers and employees seeking flexibility in the workplace.

Benefits for carers

Research from the Centre for Economics and Business Research for LinkedIn found that increased flexibility could open up new work opportunities for millions of people, including carers and people with disabilities.

Lyndsey Simpson, chief executive of 55/Redefined, says that it is about time working became “accessible for all” and this new law is a “huge win” for not only parents but also grandparents across the country, giving them the “flexibility” to work without the “invisible restrictions” holding them back from their career potential.

Similarly, Jane Van Zyl, chief executive of Working Families, highlights the bill’s usefulness for millions of parents and carers in the UK who rely on flexible working to enter and stay in employment. “It is no longer a perk; for many, it is a necessity,” she says, adding that flexible working is not just good for people, but also good for business and good for the economy.

“When employers implement flexible working effectively, they reap the benefits from increased talent attraction and retention to better performance,” she adds.

What employers should consider

According to Chris Jones, senior associate in Herbert Smith Freehills, it is a good moment for employers to remind themselves of the distinction between flexible and agile working.

“The fact that an employer may already have an agile working environment in which employees are already able to, for example, work from home a certain number of days per week, is not a reason on its own to submit a formal flexible-working request,” he says, adding that because many jobs can now be done partially remotely, any decision to refuse a flexible-working request must be supported by a “strong rationale”.

Andrea London, partner at Winckworth Sherwood, says employers should receive “further latitude” in the new act as the now-required consultation period has no minimum time frame nor a requirement that it is a “substantive process”, nor any other detail about what such consultation has to include.

“It appears to be entirely open for employers to determine the nature, length and content of the consultation,” she says.

In addition, Ayres advises businesses to thoroughly assess demands for flexible working hours. “While it is not a legal requirement to properly consult employees on any outcome,” she says, “taking the time to speak with them about how an employer arrived at that decision, and the process and thought they have applied when dealing with and considering their request, is a small step that can help minimise risk.

“It’s also critical that management teams understand the implications of flexible-working decisions and how to handle them correctly,” she adds.

Claire McCartney, senior inclusion and resourcing adviser at the CIPD, advised employers to familiarise themselves with the changes to the new law and stressed it would be “helpful” to start adjusting internal policies to reflect these changes.

She adds that employers should give training to all those involved in the process around the right to request, including HR and line managers within organisations. “From a cultural perspective it’s important to build an open and supportive culture around flexible working, where people feel supported to work in different ways,” she adds.

Farmer says that while we await a formal introduction date, employers may wish to take steps to prepare an updated flexible-working policy which can be released from the date the changes come into force.