Millions of British workers will have more flexibility in terms of where and when they work due to the Flexible Working Bill achieving Royal Assent in July last year. This will mean that British workers (with the exception of Northern Ireland) will have the right to request flexible working from day one in a new job. Their employers will be obliged to consider any requests and provide a reason for refusal.
For the majority of parents and carers who rely on flexible working arrangements to enter and stay in employment, this is a welcome development.
Following a commitment to encourage flexible working in the 2019 manifesto, the new Act will require employers to consider and discuss any requests made by their employees within two months of the request being made. The new legislation will also increase employees’ rights to two requests a year. The current requirement that the employee must explain what effect the change applied for would have on the employer and how that effect might be dealt with, will no longer apply.
Most would agree that the new legislation is beneficial to both parties. For employees, it allows them to better balance their working lives. For the employer, it means the ability to attract a greater talent pool, a more satisfied workforce and should reduce staff turnover, boosting productivity and competitiveness. CIPD (Chartered Institute of Personnel and Development) research indicates that 6% of UK employees changed job last year specifically due to a lack of flexible options available. 12% left their profession altogether due to the lack of flexibility.
Flexibility is broadly defined both under UK and ROI (the Republic of Ireland) legislation and can relate to working hours or patterns including part-time, flexi-time, compressed hours or adjusting start and finish times. It can also include remote working or flexibility over where an employee works, either at home or at a satellite office, which may reduce an employee’s commuting time.
Employers will still be able to rely on one or more of the eight statutory business reasons to refuse a request. Employees will have a right of recourse to the UK Employment Tribunal who will adjudicate on the decision made. The tribunal will then have the power to award compensation of up to 8 weeks’ pay if the employer made the decision on incorrect facts. The tribunal can also order that the employer reconsider a request.
The measures in the Act will be supported by an updated Code of Practice (the updated Code) which is awaited after a consultation process concluded in September. The updated Code seeks to encourage a more positive approach to flexible working. It will also emphasise fostering an environment in which requests are not rejected by default without open-minded consideration and meaningful engagement. It is expected that these changes will come into force in 2024 as the Employment Relations (Flexible Working) Act, to give employers time to prepare for all changes.
Northern Irish position
Northern Ireland however will not benefit from the changes being introduced. Employees will still require 26 weeks continuous service before being eligible to request flexible working. Only one request a year is allowed. There is also no obligation to consult with the employee and the employer can take up to three months to respond to such a request.
In ROI, the Work Life Balance and Miscellaneous Provisions Act 2023 (the Act) was enacted into law in April 2023, however many of its key provisions have yet to be commenced. The Act was introduced to increase gender equality by promoting the participation of women in the workforce and equal sharing of caring responsibilities between the sexes. It is hoped that this, in turn, will effect change and close the gender pay gap.
The Act means a number of significant new entitlements for employees. This includes the right to request remote working arrangements for all, flexible working for parents and those with caring responsibilities and a right to paid domestic violence leave amongst others. Unlike the UK where flexible working has been in place for some time, this is the first time that employees will have such rights.
An employee must have accrued six months continuous service before being able to make a request for a remote working arrangement. The request itself must be made at least eight weeks before the proposed commencement of the arrangement and set out the proposal. The employer must also respond within a shorter period of four weeks, which is subject to extension up to eight weeks if the employer is experiencing difficulty evaluating the viability of the request. The employer, when responding to any request, must balance the needs of both parties and the provisions of the Workplace Relations Commission’s (the WRC) Code of practice in the area (the Code), to be published in the coming months. If the employer refuses the request, they are obliged to explain the reasons for refusal to the employee.
Separate to the right to request a remote working arrangement, the Act has introduced new rights for employees with caring responsibilities. Employees with a child of 12 (or 16 if the child has a disability or long term illness) or those who care for a relative or live with a person in need of significant care or support for a serious medical reason, will have the right to request a flexible working arrangement. These employees must also have at least six months service to make the request for a flexible or remote working arrangement.
The WRC cannot consider the merits of any decision made by an employer in refusing a request. However, where an employer breaches their obligations in managing an employee’s flexible/remote working arrangement, the WRC can award up to twenty weeks remuneration and/or direct the employer to comply with the requirements under the Act.
Both the Code and commencement orders are currently awaited before the new legislation on remote working and flexible working requests can take effect. The Code should provide useful guidance to employers on how best to manage requests of this nature and how best to update their policies and procedures in this regard.
The world of work has changed so drastically in the last few years, especially since the global pandemic of COVID-19. With the introduction of flexible and remote working in ROI for the first time and the revision of current legislation in the UK, whilst one size certainly won’t fit all, it would appear that flexible working is here to stay.
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