The UK’s Flexible Working Act: What HR needs to know

After a year of deliberation in the UK Parliament, the Flexible Working Bill has received Royal Assent and been signed into law.

This 2023 Act amends the Employment Rights Act 1996, which gave employees a statutory right to ask to work flexibly (in terms of hours and location), but within certain limits.

We spoke to UK law firm Winckworth Sherwood Senior Associate Harriet Calver to explain the rights employees will now have.

“Employees will now be able to make two flexible working requests in any 12-month period, rather than just one, and requests will have to be dealt with by employers within two months of receipt, rather than three,” she said.

Calver adds that “under the Act, employers will also not be able to refuse a request until they have ‘consulted’ with the employee”.

“Plus, the obligation on an employee to explain what effect they consider agreeing to the request would have on the employer’s business has also been removed.”

It’s important to note that although there was a “concern” from employers that the Flexible Working Act would create “a day one right to request flexible working”, “this is not included within the Act”, as WorkNest’s Solicitor Alexandra Farmer shares.

“However, the government has indicated that it will create day one employment rights through secondary legislation,” notes Calver.

The timing of this remains unclear, and Calver explains that if this does come into force, “it does not give employees the right to work flexibly from their first day on the job (only to put in a request which could take two months to decide”.

HR, it’s time to get prepared

Of course, these changes to the “mechanics and process” (as Stevens & Bolton partner Hannah Ford describes it) around flexible working requests have an impact on employers as a whole, HR teams bear the brunt.

While they have been grappling with more and more flexible working requests since the pandemic – ultimately this legislation is a “baking in of changes prompted by the pandemic”, in the words of Ford – “these statutory changes represent a further pro-employee shift, placing a further burden on employers to deal with successive requests, engage more effectively and respond more quickly”.

Although “it could take around a year before it comes into force”, now is the time for HR to prepare and update handbooks and policies, according to Ford.

They should also keep a close eye on how the regulation in the UK evolves (and not just in terms of the day one right).

Remote’s vice-president and general counsel Sam Ross notes: “A productive course of action as legislation continues to advance would be for businesses to look internally at their own corporate policies to consider where flexibility can be provided.

“This would provide greater flexibility for employees without putting the responsibility on individuals to go down the formal request route.”

Vestd CEO and founder Ifty Nasir agrees that while employers should “ensure they are meeting their employees’ statutory rights”, they should also move quicker than legislation (if they haven’t already). Employees want to work flexibly (both in terms of location and hours) and they are prepared to quit jobs that don’t offer them the right flexible options.

“For any businesses have not already adopted flexible working across their business, it is vital that you can build a culture or trust among your teams.

“A clear company-wide policy is essential to ensure your individual rules are being followed, as well as being applied consistently and fairly.”

The global regulatory landscape around flexible working

Of course, the UK doesn’t exist in a vacuum in the debate around remote vs in-person work between employees and their employers.

While employers that only operate in the UK may need to make significant changes in advance of the new law, for multi-national European companies, the UK’s Flexible Working Law is simply a “positive step towards catching up with our Europe neighbors”, according to Vestd’s Nasir.

Remote’s Ross adds: “A lot of EU countries take a similar approach to the UK in providing a statutory right to require flexible workings, however, the way that these requests work differ” – there are some EU-wide rules, but these mainly focus on working parents and carers.

France has had rules around remote work since 2017, but in terms of flexible work (especially in terms of hours) there is no general right. WorkNest’s director of legal services James Tamm tells UNLEASH: “Employers and employees can negotiate some kind of flexibility at a local level, but here is no overarching statutory scheme.”

Having said that, on the negotiation, there don’t seem to be restrictions of how early into employment that this negotiation happens, meaning it could be more favorable than the UK and its current 26-week restriction.

France also has lots of restrictions around when employers can contact their employees who work remotely, with a focus on giving employees a right to disconnect no matter where they work.

In Germany, like in the UK, employees can ask for flexible work (or reduced hours) after six months of employment. The request can only be rejected “for operational reasons”, according to Tamm.

By comparison, the UK offers eight reasons companies can refuse flexible working requests, some which seem to move beyond operational challenges.

• Extra costs that will be a burden on the business
• The work cannot be reorganized among other staff
• People cannot be recruited to do the work
• Flexible working will negatively affect quality
• Flexible working will negatively affect performance
• The business’ ability to meet customer demand will be negatively affected
• There’s a lack of work to do during the proposed working times
• The business is planning structural changes.

“Finland is the leader in advancing flexible working…There is a right for employees to start or finish three hours earlier or later than their core working hours and most working have the right to choose where and when they work for at least 50% of their working hours”, continues Ross.

These legal differences bring added complexity for HR teams managing cross-European workforces – and the situation becomes even more difficult when thinking about companies with a large US population.

Winckworth Sherwood’s Calver notes: “The UK regime appears to be significantly more favorable than the US in general, where federal law does not specifically address flexible working” – there are some state differences of course; for example, Vermont and New Hampshire have passed flexible working laws.

Ross concludes: “In a global organization, HR needs to be aware of the differences in flexible working rights between jurisdictions”, no matter how subtle.

“However, for the most part, it is up to employers to lead the way and put in place flexible or remote working policies that are reflective of the current climate rather than waiting for laws to catch up.”