The Employment Relations (Flexible Working) Act 2023 has now reached Royal Assent
This means that changes have been made to flexible working applications made by employees to their employers. These are as follows:
- Employees can now make two flexible working requests per 12-month period.
- Requests must be addressed within 2 months, with a possible extension.
- Employers cannot refuse a request without first consulting with the employee (though the Act doesn’t define what ‘consultation’ entails).
- Employees no longer need to explain the potential impact of their request on the company.
However, despite these changes, the new Employment Relations (Flexible Working) Act 2023 does not:
- Provide flexible working requests as a ‘Day 1 right’; employees still need 26 weeks of service before making a request.
- Mandate employers to offer a right of appeal if a request is declined, though it’s recommended in the ACAS Code of Practice.
- Specify any minimum standards for consultation with employees or cover all available options.
What do these changes mean for employers in the healthcare sector?
- Increased Flexible Working requests: With the Act allowing employees to make two flexible working requests in any 12-month period, employers may experience a higher volume of requests compared to before. This could mean more administrative work and decision-making for employers to handle.
- Time-bound processing: The Act sets a deadline of 2 months for dealing with flexible working requests unless an extension is agreed upon. This time-bound processing requires employers to be more proactive and efficient in reviewing and responding to such requests, avoiding unnecessary delays in the decision-making process.
- Requirement to consult: Employers are now obligated to consult with employees before refusing a flexible working request. This means that employers need to engage in discussions with employees, considering their reasons for requesting flexibility and exploring potential alternatives or compromises.
- Employees do not need to provide a ‘detailed impact explanation’: Employees are no longer required to explain the potential impact of their flexible working request on the company. This streamlines the application process for employees and reduces the burden of justification on their part. However, it is likely that employers will want to evaluate the impact of an employee moving to a flexible working arrangement in terms of staffing levels and task delegation, and so rather than the burden being removed, it is instead shifted to the employer or management.
However, employers should also consider the below:
- Unclear Definition of ‘Consultation’: While the Act mandates consultation, it doesn’t specify what this process should involve. This lack of clarity may lead to different interpretations of what ‘consultation’ means, potentially causing confusion for employers.
- No Mandatory Right of Appeal: Employers are not required by the Act to provide a right of appeal if a flexible working request is declined. However, considering the ACAS Code of Practice recommends offering an appeal process, employers may still want to consider implementing one to enhance transparency and employee satisfaction.
- Lack of Minimum Standard for Consultation: The Act doesn’t establish any minimum standard for the consultation process with employees. While this provides flexibility, it also means that some employers may not conduct thorough consultations, potentially leading to disputes or grievances.