New laws and new guidance: (sm)all change for flexible working?

Flexible Working Bill gets Royal Assent

Following hot on the heels of other employment related Private Members Bills that have also survived the full passage through Parliament, the Employment Relations (Flexible Working) Bill has now received Royal Assent. Because the government will need to introduce regulations before these changes come into force, the changes are expected to take effect this time next year.

What’s changing?

The pandemic marked a sea change in how and where people work. Nevertheless, the changes that will be introduced by the new Act are less dramatic. We have written about these previously, but to summarise, key changes are:

• Removal of the requirement that the employee explains the effect (if any) that their request may have on the employer and how that might be dealt with.
• An increase in the number of requests that can be made in a 12 month period from 1 to 2.
• A requirement that employers respond to requests within 2 months, down from 3.
• Requiring employers to consult with the employee on the request before it is rejected.

The flag ship reform of the introduction of a day one right to flexible working (removing the current need for 6 months’ service before a request can be made) is not a change introduced by the Act itself. However, the government has reiterated its intention to introduce this particular change by way of secondary legislation at the same time as the Act comes into force.

Ultimately the changes are limited: whether to accept or decline a request remains in the hands of the employer. It is still a right to request, not to have a flexible working arrangement, and the 8 grounds on which a request may be refused are unchanged.

What is the Acas Code?

Statutory provisions on flexible working in the Employment Rights Act are supported by the Acas Code of Practice on handling in a reasonable manner requests to work flexibly and also a more detailed non statutory guide. The existing Code was published in 2014 and sets out minimum standards of fairness that employer should follow. Compliance with the Code can be taken into consideration by employment tribunals. In Acas’s words, “The aim of the Code is to provide employers, employees and representatives with a clear explanation of the law on the statutory right to request flexible working, alongside good practice advice on handling requests in a reasonable manner”.

Ten days before the Bill passed, Acas released a consultation on an updated Code of Practice and guide to reflect the upcoming changes to the law. As well as the backdrop of legislative reform, the introduction to the consultation also nods to advances in technology and the pandemic, which have both resulted in changes in attitudes to flexible working.

What is changing?

The proposed changes to the Code are far from groundbreaking, but do point to a workplace culture that should be more supportive of flexible working arrangements.

• New Foreword: The draft Code includes a detailed foreword that explains the benefits that flexible working can bring to employers and employees. For employees, these include a better balance between working life and personal responsibilities and preferences; for employers, an openness to flexible working can improve diversity and address labour shortages.
• More positive: Echoing the new statutory requirement to always consult on a request, the updated Code seeks to encourage a more positive approach to flexible working that allows for meaningful dialogue. The foreword promotes an openness to requests and a positive and constructive attitude to consultation; rejecting requests should not be “the default”.
• Explore alternatives together: The revised Code places greater emphasis on exploring alternatives during the consultation meeting, suggesting that finding a viable solution should be more of a collaborative process. This shift in balance compliments the removal of the need for the employee to explain the effect of their flexible working request, something that the updated legislation will bring into effect.
• Strengthening good practice principles: Although the right to be accompanied to meetings to consider the flexible working request and also the right to appeal the rejection of a request are not statutory rights, these are both strongly promoted as good practice by Acas. Both are prominent in the existing Code, but are strengthened in the revised draft. For example, the group of proposed meeting companions is expanded to include union representatives, currently only referring to colleagues. And in terms of appeals, the Foreword recommends these are offered “proactively”, with the draft Code indicating that employers should not only allow appeals but explain in writing how they can be raised and that they should also be dealt with “impartially”.
• Transparency: Many of the changes to the draft Code aim to ensure transparency. For example, the proposed wording recommends that even when a request is accepted, a meeting should be held to ensure that “all relevant information is understood” so that the arrangement can be effectively implemented. In a similar vein, if a request is rejected, the draft Code recommends that the employer sets out “such additional information as is reasonable to help explain the decision”. Again, this is more proactive and supportive than the existing recommendation that the employee should simply be allowed to speak to the employer after a rejection in order to garner further information.

Although the 8 business reasons for rejecting a request have remained the same – and remain broad – this recommendation suggests that a more detailed explanation, going further than simply pointing to the relevant statutory reason for rejection, may sometimes be needed. Encouraging a greater degree of transparency should serve as a good motivation to employers to ensure sound analysis underpins their decision. It can also mitigate against discrimination risks, which can arise when decision making processes are opaque.

• Predictable working patterns: The revised Code also refers to the proposed right to request a predictable working pattern, explaining how requests under the two regimes may interact. It explains that a flexible working request that aims to improve predictability may be better dealt with under the procedure for requesting a predictable working pattern.

Are these changes significant?

Although the policy underlying both the new Act and the draft revised Code is supporting flexible working and encouraging a positive and transparent approach to requests, the changes are unlikely to have a dramatic impact. The Code is ultimately about process and procedure. A broader focus on the business case for flexible working is reflected in new guidance that has been released by the charity Working Families, in conjunction with the Government’s Flexible Working Taskforce. This looks at why flexible working is good for business and provides guidance on designing a flexible role.
Looking at this broader cultural point, it’s clear that the pandemic marked the death knell of the 5 day office week. However, many organisations are still finding their equilibrium in terms of levels of office attendance. Some industries – in particular tech and professional services – are pushing for greater mandatory in-office time. Submitting a flexible working request will be one means for employees to push back on these kind of requirements. When responding to such a request, it’s clear that the balance of power remains with the employer as the statutory grounds for refusing a flexible working request are still wide. That said, employers need to look at the bigger picture: as flexible working is now so widely valued, many prioritising this over pay, employers will also need to factor in retention and consistency across their workforce when responding.

Whether a potential change in government next year will see more change in this area remains to be seen. We explored the Labour Party’s position on flexible working in more detail here, which notably includes a proposed “right to disconnect” i.e. the right for a worker to disconnect from work outside of working hours and not be contacted by their employer.

Active consultations

The consultation on the revised Code will remain open until 6 September 2023. Responses can be made online here. In addition, the government has also launched a Call for Evidence on what it refers to as ‘non-statutory’ flexible working, which it intends to use to help formulate future strategy. This essentially means flexible working arrangements that are not put in place pursuant to a statutory flexible working request. The Call for Evidence divides these between regular arrangements (e.g. an organisational wide agreement that people can work from home two days a week) and ad hoc arrangements (e.g. adjusting working time to attend a medical appointment). It’s therefore clear the scope of the exercise is broad. The Call for Evidence will remain open until 7 November 2023 and can be accessed here.