Don’t Wait For Workplace Flexibility Law To Go Into Place To Do The Right Thing

Posted on 7th August 2023

Ben Thompson, CEO of Employment Hero

The UK should be congratulated on its new law promoting flexible working, which gained Royal Assent a few weeks ago.

This new law gives a variety of protections to employees who are keen to work flexibly, and ensures that employers take on these requests in good faith. After so much change in working behaviour brought about by the pandemic, this act looks to arrange some of that attitude shift into law. It doesn’t force businesses to just allow people to work in any way they want – but it does require that requests that are reasonable are properly considered.

While the act has now gained Royal Assent, it isn’t going into effect until around this time next year.

Before then there is plenty you can do as an HR team to prepare. Indeed, there’s no reason you should wait for the law to be in force to act as if it is.

What the new law changes

The new law largely changes the process for employees requesting flexible working, rather than flexible working itself.

A right to these requests was established in 2003, but many believe it has been underused and seen as a “perk” – given that employees were only allowed to make a request after six months of working.

Note that this is not a right to flexible working itself, just a right to ask for it. Flexible working can include a variety of changes to hours of work and places of work – a classic case is someone leaving early to pick up their children from school and filling in some extra hours at home.

One key change is the frequency of that request: Employees can now ask twice per year, up from once per year.

Another key change is the format of the request. Employees used to have to explain what effect the change in their working patterns would have on the wider business; they no longer have to do that.

Employers on the other hand, have new obligations when a request is made. They must consult with the employee on the request itself, and they must respond within two months – instead of the three-month deadline currently in place.

While this requirement to consult is new, employers retain the same legal reasons to reject a request as they had before. These are listed here but broadly include what you might expect – an employer can reject a request because it will cost too much for the company or stop it being able to meet customer demand.

Finally, the position of this right to request as a “perk” earned after six months is being shifted. The Government will introduce regulations alongside the new law to make it a day one right, rather than one earned after six months.

Why you should change now

This law change doesn’t go into effect until next year, but there is nothing stopping you from enacting the larger changes at your organisation now.

After all, you will have to make the shift in your policies. Any potential issues with the law change within your business should be ironed out now, before you are legally obligated to make the change.

Crucially, this will show your employees that you value them and want them to thrive at your organisation long term – even if life gets in the way in some way. My organisation Employment Hero already operates with something like flexibility-by-default – our people can work from anywhere in the world with a good internet connection and generally make any time zone work. It’s been enormously beneficial, especially for employee retention – instead of seeing talent leave the company because they are moving overseas or have a toddler to look after, they stay at the company but make the work suit them.

And remember: It is still a right to request flexible working and have it considered in consultation, not to have flexible working itself. If a request comes in that really isn’t workable, you can still reject it.

How you can go further

Good employers rarely see the legal minimum as the gold standard.

While the new law is being readied for introduction, the Government is also consulting on a new Code of Practice for handling flexible working requests. The code itself will not be legally binding, but failure to follow it could be considered by employment tribunals.

This code is a great place to start if you want to go further than the legal minimum.

A key shift will be a change of attitude from a default of “no” to requests. This is not something that can be perfectly encapsulated in a written policy but is something you can think about as an HR team – when a request comes in think of ways it could work rather than ways it could not.

This could include exploring alternatives, something the draft code encourages. The initial request might not quite work for your business, but is there another alteration that could?

Another way to go above and beyond the legal minimum is to set a standard for flexible working that all employees can access by default. This could include, for example, the ability to work from another country for a set number of weeks a year, if the employee works their usual hours. Or by default allowing parents of children under the age of 12 to leave at 3pm and catch up at work at home. Having these kinds of policies makes it clear that flexible working is welcomed by your organisation – not just endured – and will be a huge help regarding both retaining and attracting talent.

The pandemic shifted a lot in the way we work, opening up whole new attitudes to the traditional 9-5 which has allowed far more people to participate fully in work. It would be a shame to leave that all behind.