The law is changing – Employment Relations Act is to take effect
A law changing an employee’s right to claim flexible working received Royal Assent on 20th July 2023 with the Employment Relations (Flexible Working) Act is likely to take effect around mid 2024.
Employees have had the right to make flexible working requests for 20 years. However, those rights have been extended since they were first introduced.
Changing Attitudes towards flexible working
There is no doubt that pandemic was a game changer in how employers dealt with flexible working requests. Following the pandemic attitudes changed. Particularly to so called blended or hybrid working and working from home. As many more employers realised that it can be mutually beneficial to offer employees more flexibility.
What is Flexible Working?
It’s worth remembering that flexible working is more than working from home and so called blended or hybrid working. The business we support operate a range of flexible working:
- ‘working from home’ either all the time or on set days or for certain agreed periods.
- ‘compressed hours’ working a standard week in fewer days. Click here to calculate the pro rata holiday entitlement for an employee who moves to a compressed hours contract.
- ‘flexitime’ working ‘core’ hours, but varying start and finish times.
- ‘annualised hours’ working a set number of hours across the year rather than each week.
- ‘staggered hours’ starting and finishing at different times from colleagues.
- ‘term time working’ only working during term time. Click here to calculate the pro rata holiday and annual salary for an employee working on a term time contract of employment.
- ‘part time working’ working a set number of hours, days or part days in a week. Click here to calculate pro rata pay and holidays for part time employees.
Click here to view the CIPD’s fact sheet on flexible working.
Why the Change?
The government hopes that by extending the right to flexible working and requiring employers to deal with requests more consultatively. This will increase the opportunities for employees to make claims, and give them more confidence should they decide to request to work flexibly. They also hope that by offering flexibility, and allowing more employees to request it, this will benefit employers as it will help them to recruit and retain staff.
What will Change when the Employment Relations Act passes?
The Employment Relations Act brings about a number of changes:
- To make a request an employee must have 26 weeks service. To make this as a ‘day one’ right will be dealt with through secondary legislation. Currently, under the Act, employees will still only be able to make requests once having completed 26 weeks’ service.
- Now employees are allowed one request for flexible working per year. When the Act comes into force, two requests per year will be allowed.
- Currently employees must explain the effects of their request to work flexibly on their employer. When the Employment Relations Act comes into force, employees won’t have explain the effects of their request on the employer.
- At the moment, there is no requirement on employers to consult before rejecting a request. When the Employment Relations Act comes into force, Employers must consult with employee first.
- Under current legislation, employers have Three months to respond to a request. When the Employment Relations Act comes into force, they must respond in two months.
What will stay the same when the Employment Relations Act passes?
No changes will be made to the statutory The list of business reasons for rejecting a requests remains unchanged, these are:
- the burden of additional costs;
- an inability to reorganise work amongst existing staff;
- unable to recruit additional staff;
- a detrimental impact on quality;
- a negative impact on performance;
- a detrimental effect on ability to meet customer demand;
- insufficient work for the periods the employee proposes to work;
- a planned structural change to your business.
Although it was anticipated by some, there will not be a requirement for flexible working to be available by default. Also there will still be no statutory requirement for employers to offer a right of appeal, although it continues to be good practice and recommended by Acas.
The Acas Code on Flexible Working
Acas are currently consulting on a new draft code of practice to reflect what they believe has been a “global shift and changed attitudes towards flexible working” which has allowed more people to “better balance” their working lives. The draft code will encourage employers to take a positive approach to flexible working and addresses all the new changes in the Act. The consultation closes on 6 September 2023. Click here to read more
What should companies do now to deal with flexible working requests a head of the Employment Relations Act?
If you don’t already have a policy in place for dealing with these requests, you ‘ll need to create one that meets the requirements of the new act and any supporting secondary legislation. Those who already have a policy in place it’s likely that they will need to update it to reflect the changes that are going to take place.
If you have paperwork, forms, letters etc. for managing requests, it would be a good idea to update those so that they comply with the requirements of the new Act.
Many employers already consult when dealing with flexible working claims. However, under the Employment Relations Act you must consult before rejecting a request. You will have to hold a formal meeting with the employee to discuss the request and explore available options.
We’re here to help
Click here to learn more about how we support businesses to effectively manage their HR. At People HR we can advise on anything from employee benefits, to company polices for your small business. Our local knowledge can be based on experience in dealing with certain areas of work to help with Health and Safety at your Warrington workplace. We can also travel around small businesses in Warrington, Liverpool, Manchester and beyond to cover our training and inductions.