Flexible Working Bill: how to respond to a flexible working request

On Monday, the government’s Flexible Working Bill became law. Small business owners are now being warned to take steps to accommodate flexible working within their teams.

Also known as the Employment Relations Bill, the legislation was first proposed by MP Yasmin Qureshi to give employees greater flexibility over where, when, and how they work. In July, it received royal assent from the House of Lords. The new rules will now come into effect on April 6 2024.

Under the new legislation, employees will be able to make two requests for flexible working hours, times, or location in a 12-month period from day one of their employment.

Managers will also have to provide proper reasoning for an employee before rejecting a request for flexible work. Below, we outline how employers should react to the new laws.

Why has the Flexible Working Bill been introduced?

As little as five years’ ago, flexible working was viewed as a luxury perk only offered by the most progressive employers in the UK. In fact, one survey shows that just 8.7% of roles being advertised in 2016 were considered flexible.

How times change. Now, according to research by Sonovate, 58% of UK businesses currently offer flexible working in some form. That’s an increase of 566% in just seven years.

The Startups team has written extensively about the benefits of flexible working. Key among these is an improved work-life balance and improved health and wellbeing. This has been enough to convince a third of sole traders to work exclusively from home.

However, research shows that the practice is not being fairly implemented across every sector. Some employers have also reportedly misused the policy. Recently, an estate agent won £180,000 after her boss was found to have unfairly rejected her request.

The government proposed the new Employment Relations (Flexible Working) bill last June to overhaul what had become an outdated application process for flexible working, and empower workers to have more control over their working patterns. In December, it was officially confirmed that the new legislation will come into effect in spring 2024.

What does the Flexible Working Bill do?

The Flexible Working bill introduces some sizeable changes to present UK employment law. Currently, the Employment Rights Act 1996 states that any employee who has worked at a company for 26 weeks or longer is permitted to ask their manager for flexible working once per year. They must also “explain what effect, if any, the employee thinks making the change applied for would have on their employer”.

Among the key changes, the new legislation means:

• Employees can request flexible working arrangements from day one of employment
• Employers must consult with their employees before a flexible working request can be turned down
• Employees can make two flexible working requests in any 12-month period 
• Employers must respond to requests within two months (previously three)
• Employees are no longer required to lay out how a flexible working request might impact the employer

How should employers prepare for a flexible working request?

Joanne Stronach is Head of Employment Law and HR at Cartmell Shepherd Solicitors. Stronach says employers should make a note now of any potential consequences of the bill that might be difficult to manage.

For example, an organisation may advertise and appoint a full-time, office-based role only to receive a request for flexible working six months later.

Pre-bill, this might have been a case of ‘bye-bye employee’. Not any more. Managers now need to be able to open up conversations with team members around why their role is or isn’t suitable for flexible working.

Having infrastructure already in place, such as a set procedure laid-out in an employee handbook, will be a significant life ring in this scenario.

“Make sure you are aware of the legislation before it comes into force and consider ways in which you could potentially introduce flexible working within your business,” Stronach advises.

Employers will already be aware of common flexible options like part-time, remote, or at-home working. Those with bolder ambitions might consider alternative arrangements.

Four day work weeks, where work is compressed into four days rather than five have become popularised. Amazon recently introduced term-time working, where the employee can take paid or unpaid leave during the school holidays (a good option for working parents). Some employers even have flexible bank holidays, where staff are allowed to swap public holidays for a more convenient time.

Remember: any change to an employee contract is a big move with real ramifications for the workforce. Business owners must be fully committed to whatever step change they introduce.

Our guide for how to design a hybrid work policy has more information on what to think about when introducing a new perk or policy, like technology requirements and performance/management considerations.

Why should employers approve a flexible working request?

It’s hugely telling that 58% of businesses are now giving employees some option of flexible working. Flexible work arrangements give employers a competitive edge when it comes to sourcing talent – an incentive that has never been more urgent in today’s hiring climate.

Scarcity of skilled worker talent, combined with significantly raised economic inactivity, has built a barren wasteland for recruiters to pick from. In unison, record numbers of people are resigning, pushing up the staff turnover rate.

Alongside easy recruitment, flexible working has also been proven to foster a more positive organisational culture. In 2021 and 2022, Stanford University economist Nick Bloom conducted a randomised study of managers and non-managers at a major tech company. Bloom found that hybrid models had no effect on productivity, yet boosted morale and retention. Bloom’s conclusion? “It doesn’t make sense to go back to five days a week.”

Molly Johnson-Jones is co-founder of Flexa Careers, a global directory of verified flexible companies. Johnson-Jones began the company after spotting the disparity between what many job adverts were describing as flexible, and what candidates actually wanted.

“Employers who are able to accommodate employee requests stand to retain the lion’s share of talent,” Johnson-Jones attests. “Swathes of workers are already looking to switch to flexible roles.

“Flexible employers will also attract tons of new talent, including older workers who prefer part-time roles, and those with additional health needs (like myself) who rely on flexible hours and working from home.”

Can an employer refuse a flexible working request?

Yes, an employer can still refuse a flexible working request. The Flexible Working bill does not mean that any business owner should now feel compelled to approve a request for flexible work. If a company’s operations are not designed to facilitate flexible working – for example, if they are based on-site like in a warehouse – flexible policies won’t be possible.

“Not every employer will want or be able to grant flexible working requests,” Johnson-Jones acknowledges, “nor will the new legislation require them to. Regardless, employers should prepare by ensuring they’re being as transparent as possible about what they do offer – flexibility or no flexibility.

“The alternative risks putting legions of workers – including those with additional health needs – in highly vulnerable positions if they start new jobs in good faith that their flexible working needs will be accommodated, only to be let down.”

Should you offer flexible working? More importantly, can you? We’ve outlined the arguments for and against office working and remote working in our expert guide.