Flexible working, is this the future?

Eleanor Rogers


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February 21, 2023

Categories Employment Law

Is the future flexible?

The flexible working regime is in the process of being reformed as part of the Government’s ongoing “commitment to build a strong, flexible labour market that supports participation and economic growth”. As part of this, the Government has announced that employees will have the right to request flexible working from the first day of their employment, rather than having to wait 26 weeks.

But why wait? Many organisations have already experienced the benefits of flexible or agile working. A recent pilot headed by the 4 Day Week Campaign of 61 organisations working 4 days per week (but being paid for 5), saw a 2% increase in productivity, 65% reduction in sick leave and 57% reduction in work force attrition. 92% of the companies involved in the pilot will continue with the 4 day working week.

We look at the changes to the flexible working legislation and the potential benefits to businesses implementing those changes now.

What are the changes to employment legislation?

Flexible working legislation first came into effect in 2003, providing limited rights for carers and parents. Rights were extended in 2014 so that all employees with 26 weeks’ service could make a request for flexible working, regardless of caring responsibilities.

The Employment Relations (Flexible Working) Bill 2022-23 (the “Bill”) includes changes to the current Flexible Working regime and was debated at the Public Bill Committee on 7 December 2022. This followed the Government’s publication of their Response to the “Consultation on Making Flexible Working Default” in early December 2022.

The Bill would amend the Employment Rights Act 1996 to change the current right to request flexible working in the following ways:

  • removing the requirement for employees to explain the impact their new working pattern will have on their employer;
  • allowing employees to make two flexible working requests each year, rather than one as currently allowed;
  • requiring employers to consult with an employee about alternative flexible options, before the request is refused; and
  • reducing the time in which an employer has to respond to a request from three months to two months.

The right to request flexible working from day one (“Day One Rights”) in a job (removing the requirement to have 26 weeks’ service) will be introduced separately via secondary legislation.

It is hoped that the Bill will ensure more people can access flexible working and act as a “catalyst” to address the barriers faced by women, the disabled, carers, and older people.

When will the changes come into force?

According to the discussion at the Public Bill Committee on 7 December 2022, it is likely that Bill will come into force in 2024. In respect of the Day One Rights, secondary legislation will used to amend the 2014 Flexible Working Regulations when parliamentary time allows, although there is some speculation that this will also be in 2024.

It is likely that ACAS will issue an updated Code of Practice in light of this. This would add flesh to the bones of the legislation and is likely to set out the minimum standard of fairness workplaces should follow. Additional guidance will be produced in respect of temporary flexible working.

The case for flexible working

Flexible working will not suit all workplaces and suitable measures will differ from one organisation to another, depending on their size, sector and the specific needs of the workforce. However, the case for implementing flexible working from day one now, especially in the context of a tight labour market and cost of living crisis, is compelling.

Flexible working is seen as means of attracting and vitally, keeping people in work. The Government’s consultation response notes that:

“Wider research indicates that flexible working can unlock opportunities for growth. It suggests that, in the absence of suitable working hours or locations, groups of people are either not employed, have retired early, or are working below their potential. Additionally, the Post Implementation Review of the Flexible Working Regulations 2014 showed that flexible working can reduce vacancy costs; increase skill retention; enhance business performance; and reduce staff absenteeism rates.”

This view is corroborated by research undertaken by CIPD who found in a recent survey that:

“those without access to flexible working are around twice as likely to be dissatisfied in their job, compared to those who do.”

Flexible working can also be used as a means of helping staff navigate the cost of living crisis, for example by reducing the need to travel at peak times, or reducing the need for expensive childcare.

We can help you identify how flexible working could work for your organisation. For further information, please contact Solicitor, Eleanor Rogers, in the Employment Team on 01227 763939 or er@furleypage.co.uk


Please note: This article is for general information only and does not constitute legal or professional advice.