The law on flexible work is changing - here's what your employer needs to do

The Employment Rights Bill (Flexible Working) reached royal assent – that means the law on flexible working is changing. Whilst the law itself won’t change until Spring 2024, employers need to be prepared.  

Flexible working is any change to when, where and how long you work. It can include compressed hours, flexi-time, remote working, job-shares and set shift patterns.  

How is the law changing? 

Now the Bill has passed, the following changes will be introduced: 

1. The number of times employees can make a flexible working request every 12 months will increase from one to two.  

2. Currently employers must respond within three months to any flexible working request, this will be reduced to two months.  

3. Employers will be required to consult with the employee before rejecting a flexible working request, and 

4. The requirement on the employee to explain in the request what effect, if any, the flexible working request would have on the organisation and how it could be dealt will be removed.  

In addition, the government have committed to introducing a day one right to request flexible working for all employees, also to be introduced in the spring 2024. This means from your first day of work, you can ask your employer for changes to how long, when and where you work.  

Does it go far enough? 

Unions have been campaigning for years for stronger rights to flexible working – these changes are a small step in the right direction but a right to request is still a right to be rejected as employers can still turn them down. Recent TUC research showed that 50% of dads and partners entitled to paternity leave had all or some of their flexible working request rejected by their employer.  

And too many people won’t ask for flexibility to start with for fear of negative treatment or rejection. A TUC and Mother Pukka survey of working mums found that two in five (42 per cent) would not feel comfortable asking about flexible working in a job interview. 

The TUC is calling for the right to work flexibly from day one, unless an employer can properly justify why this is not possible. We’re also asking  for employers  to publish possible flexible working options in all job adverts and give successful applicants a day one right to take up any of those options. 

What should union and employers be doing? 

Even though the law won’t come into effect until April 2024, as a rep you should speak to your employer now about what they should be doing on flexible working to make sure they're following the new law and going above it. 

1. Update policies. If flexible working policies don’t already reflect the new law, change them now – there's no need to wait until next year. You can also negotiate with your employer to go further. For example, you could ask for them to ensure that all workers (e.g agency staff, those on zero-hour contracts) not just employees to have access to flexible working, reduce the time employers can take to respond to requests, ensure people can appeal rejections and don’t apply limits to the number of times people can ask.  

2. Get familiar with the new Acas statutory code of practice. Employers need to be aware of the new code which will be published when the law changes. Reps can currently contribute to the consultation Acas are running on this, to ensure working people’s voices are heard. 

3. Review job roles for possible flexible working options and include in job adverts. Given that workers will be able to make a request from day one, employers should get ahead of this and be up front about what working arrangements are possible. Knowing what flexibility is on offer is essential for people who need flexibility to be able to work and it removes the onus on people to ask. 

The TUC are signed up to the happy to talk flexible working scheme, which encourages employers to include possible flexible working options in job adverts. Reps should work with employers to decide what flexible working options are possible. 

4. Make sure flexible working is for everyone. Whilst not every type of flexible working will work in all jobs, some form of flexible working is possible in every job, whether that’s a set shift pattern, flexi-time, compressed hours, a four-day week or hybrid working. Review your flexible working policies to make sure there are options available for everyone and have workplace wide policies, like flexi-time, team rostering or hybrid working, so people don’t always have to make a statutory request. 

5. Conduct an equality impact assessment of your flexible working policy. Flexible working benefits everyone but we know that some people need it to be able to get into and stay in work. Not having good policies could disadvantage women, older workers and disabled workers.  

6. Track who has access to flexible working and their experiences of it. To understand whether your employer has a good culture, they need to know how many people want flexible working, who is getting it and monitoring whether people who do work flexibly are treated fairly with things like access to training, progression, and development. You could also do a member survey to find out what people want from a policy.  

The TUC’s rep guidance on flexible working has more information and we’ll be updating it and other resources in the future to reflect the new law.  

What do you think about the legislation? Does it go far enough? What information will be helpful for reps? Email me on aarkwright@tuc.org.uk.