Flexible Working

Employment Relations (Flexible Working) Act 2023 – 6^th April 2024

The Employment Relations (Flexible Working) Act 2023 came into force on 6 April 2024. These regulations will remove the current 26-week minimum period of service for employees to make a request for flexible working, meaning that it will become a ‘day one’ right with effect from 6 April 2024.

• Employees will be able to make two flexible working requests (rather than just one as at present) in any 12-month period. Only one request can be in progress at any time.

• Employers will be required to ‘consult’ with employees before rejecting any request, although the Act does not include any details of what the consultation process should be.

• Employees will no longer be required, as at present, to identify the effects of the proposed change and suggest how the employer might deal with them.

• Employers will be required to respond to a request within two months rather than three months as currently applies, subject to an agreed extension.

A new ACAS Code of Practice on handling flexible working requests is also due to be approved shortly.

The Workers (Predictable Terms and Conditions) Act 2023 – predicated September 2024

This Act was was passed on 18 September 2023 and creates a new statutory right for workers on atypical contracts - such as agency workers, short fixed-term workers and those on zero-hours contracts - to request a more predictable working pattern. It is important for employers using these arrangements to be aware of the changes.

The Workers (Predictable Terms and Conditions) Act 2023

Although flexibility is a key characteristic of the UK labour market, the Act aims to address the issue of 'one-sided flexibility' whereby workers are not guaranteed work but are expected to be available at short notice with a lack of reciprocity.

The terms of the Act are summarised below, however the details will be published in due course via separate regulations. There is no date for implementation yet, but to give employers time to prepare for the changes the legislation is not expected to come into force until September 2024.

The new right is modelled on the current flexible working regime and will operate in a similar way. However, the right to request predictable working will not be a 'day one right' (as the right to request flexible working is set to become).

In what circumstances can workers request a more predictable working pattern?

Workers will have the right to make a request where:

• There is a lack of predictability as regards any part of the work pattern (the work pattern being the number of working hours, days of the week and times on those days when the worker works, and the contract length);

• The change relates to their work pattern; and

• Their purpose in applying for the change is to get a more predictable work pattern.

Who can request predictable working?

The right extends to all workers and employees subject to a minimum service requirement. Although the length of this has not yet been specified, the government press release has indicated that it will be 26 weeks.

It is not expected that workers will need to have 26 weeks continuous employment, given the aim of the legislation is to improve unpredictable working patterns for atypical workers who are inherently unlikely to have continuous service with the same employer. However, workers need to have been employed by the same employer (whether or not under the same contract) at some point during the month immediately before the minimum service period, ending with the making of the application.

The new law will also apply to agency workers who, if they meet the qualifying conditions, will be able to apply to either the temporary work agency or the hirer to request a more predictable working pattern.

How can predictable working requests be made?

Workers can make a maximum of two applications in any 12-month period. The predictable working application must be (i) in writing; (ii) state that it is a statutory predictable working application; and (iii) specify the change applied for and the date on which it is proposed it should take effect.

If the agency worker is applying to a hirer, they should specify whether the application is for a contract of employment or for a worker's contract. The Act provides some guidance on assessing this.

What about fixed term contracts?

The Act does not contain a definition of 'predictability'. However, it does specify that fixed term contracts of 12 months or less will be presumed to lack predictability: anyone on such a contract will be able to request that the term is extended beyond 12 months or becomes permanent.

What does this mean for employers?

The process for dealing with requests reflects the existing flexible working regime. It is not a right to predictable working, it is a right to request predictable working and provided employers deal with the application within one month of receiving it, they are able to refuse the request for one (or more) of the following six grounds:

• Burden of additional costs

• Detrimental effect on ability to meet customer demand

• Detrimental impact on the recruitment of staff

• Detrimental impact on other aspects of the temporary work agency's, hirer's, or employer's business

• Insufficiency of work during the periods the worker or agency worker proposes to work

• Planned structural changes

The government has highlighted the need for effective conversations between workers and employers about the reason(s) for rejecting a request.

Failing to deal with an application in a reasonable manner, or rejecting an application based on incorrect facts, will risk a claim based on procedural failings, Employees will have protection against automatic unfair dismissal, and both employees and workers protection from being subjected to a detriment, where they have made or propose to make an application for a more predictable work pattern. There could also be a risk of indirect discrimination claims if requests from certain disproportionately represented groups are routinely rejected (e.g. women, disabled people, young workers).

If you are experiencing problems with flexible working, we can help. Please remember there are strict time limits in Employment claims and you should take good free legal advice as soon as possible.

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