Changes To Flexible Working Laws – What Will It Mean For You?

On 5 December 2022, the government published its response to the flexible working laws consultation.

The key points to note are:

• Flexible working will become a day one right, employees will no longer have to have been employed for 26 weeks to make a request;
• Employees will be able to make two requests in any one 12-month period; and
• Employers must respond to the flexible working request within two months, previously three months.

The government did emphasise in its response to the consultation that it “remains a right to request, not a right to have flexible working”.

The new laws will also:

• Require employers to consult with their employees, as a means of exploring the available options, before rejecting a flexible working request; and
• Remove the requirement for employees to set out how the effects of their flexible working request might be dealt with by their employer.

There will be no change to the list of eight reasons the employer has to refuse a request for flexible working, which are:

• planned structural changes
• the burden of additional costs
• quality or standards will suffer
• they won’t be able to recruit additional staff
• performance will suffer
• won’t be able to reorganise work among existing staff
• will struggle to meet customer demand
• lack of work during the periods you propose to work

However, organisations should also be mindful of the need to avoid potential indirect discrimination claims when dealing with flexible working requests. Accordingly, it may not be enough to simply rely on one of the eight grounds when rejecting a flexible working application. Each application should be considered on a case-by-case basis taking into account both the law on flexible working and anti-discrimination laws.

The majority of the changes proposed will be brought into force by the Employment Relations (Flexible Working) Bill which is currently making its way through Parliament to become an Act creating the new laws. That is with the exception of the changes to make a flexible working request a day one right. This change will be introduced via “secondary legislation”. This is a much quicker process, and therefore this change is likely to come into effect sooner rather than later.