Key changes to flexible working laws

The Flexible Working (Amendment) Regulations 2023 change means: 

• Day one right: making a flexible working request will become a day one statutory right for all employees for requests made on or after 06.04.24 (previously 26 weeks of continuous employment was needed).

The Employment Relations (Flexible Working) Act 2023 changes mean:  

• Entitlement to make two requests: employees will be able to make two flexible working requests in any 12-month period (previously this was limited to one request every 12 months).
• Reduced response time: employers will be required to deal with requests (including appeals) within two months, unless an extension is agreed (reduced from three months).
• No explanation needed: Employees will no longer have to explain, within their application, the effect that acceptance of their request might have on the business, or how such effect could be minimised.
• Consultation now mandatory: to prevent employers from defaulting to ‘no’ to the request, they will be required to consult with employees on the practicalities and reasons for the request, before they are able to refuse it, making the process more transparent, with a greater emphasis on compromise.

What is a flexible working request?

The Employment Rights Act 1996 (as amended) and regulations made under it define a statutory request as a request for a change to an employee's terms and conditions relating to their hours, times or place of work. 

Who can make a flexible working request?

From 06.04.24, all workers legally classed as employees, irrespective of duration of service, will have the statutory right to request flexible working from day one of their employment. Employees will be able to make a request provided they have not already made two flexible working requests during the preceding 12 months and do not currently have a live application of the same nature under way.

Do I need to take action now?

In a word – yes! Whilst some law firms have been ahead of the game in offering flexible working from the first day of employment, for some time, this has not necessarily been applied across the board and for those not already offering this, you need to put measures in place, without delay.

Whilst the new day one right may not yet be widely known about - a recent survey by Acas found that 7 out of 10 employees are not aware that this new right will apply from April, a lack of awareness on the part of employees does not detract from the need for employers to ensure they are complying with the new legislation when it comes into force.

It goes without saying that doing so makes sense from a financial, reputational and regulatory compliance perspective, as well as reducing the risk of discrimination claims, such as indirect sex discrimination or a failure to make reasonable adjustments.

In addition, the benefits of offering a wide range of flexible working arrangements, being seen to be on top of developments in this area and promoting your firm as an inclusive employer cannot be overstated from a staff attraction and retention perspective. To quote the Chief Executive of Acas: “There has been a substantial shift in flexible working globally, which has allowed more people to better balance their working lives and employers have also benefitted from being an attractive place to work.”  

The upward trajectory of flexible working was also highlighted by timewise, a social enterprise on a mission to ensure that everyone can find the flexibility they need in their careers, without reducing their value in the workforce, who stated in their 2021 Social Impact Report that 26% of all job adverts offered flexible working (compared with 9% in 2015). Conversely, the risks to employers of not offering flexible working options were highlighted by recent CIPD research which estimated that around 4 million people have changed careers because of a lack of flexibility at work.

When you take these factors into account, can you really afford not to invest in and take flexible working seriously?  

How to adapt to the changes

1. By reviewing and updating your firm's flexible working policies to reflect the new law – this should include familiarising yourself with Acas’ revised Code of Practice on requests for flexible working which came into effect on 06.04.24. Access Legal has done the hard work for you with transitional template policy documents available as part of our Policies and Precedents for Law Firms library.

 

Note – whilst it is not a legal requirement to have a flexible working policy, it is best practice to have one to set out the firm’s stance and legal obligations to employees. It is also a requirement for Lexcel accredited firms under v6.1 of the Lexcel Standard.

 

2. Consider your internal processes and ensure there is clear understanding as to who is responsible for what – to enable you to comply with the reduced two-month decision-making timeframe.

 

3. Update managers on the changes and offer training for those who require more support – this should include how to handle requests fairly, reasonably and in compliance with additional legal duties under the Equality Act 2010 and when to seek input from HR.

 

4. In light of the increased emphasis on compromise, the leadership team, together with department heads should consider what will and won’t work for the business in terms of flexible working, with a focus on being as adaptable as possible to create an inclusive workplace and positive culture around flexible working – as the revised Acas code states ‘the starting point should be to consider what may be possible.’

 

5. Ensure you are enabling flexible working with a secure case and practice management system. Certain types of flexible working, such as remote working, increase cyber security risks, therefore it is crucial to have secure systems in place. Access Legal’s case management software is built with security and compliance in mind to help firms keep their clients’ data safe and secure – see our Cyber Security Hub for law firms for more information, which includes resources such as a free cyber security audit and a guide to cyber security for law firms.