Changes to flexible working laws

Due to the growing trend towards flexible working arrangements like hybrid working, reduced hours and compressed work weeks, the government has introduced new laws aimed at expanding access to flexible working options.

The changes place more responsibility on employers to engage with employees and make timely decisions regarding flexible working requests. It is crucial for law firm leaders to understand these changes and adapt accordingly.

So, what exactly are the changes, what do they mean for law firms and what action do you need to take?

What is a flexible working request?

A flexible working request, by reference to the Employment Rights Act 1996 (as amended), is defined as a request for a change to an employee’s terms and conditions relating to their hours, times or place of work.

Who can make a flexible working request?

From 6 April 2024, all workers legally classed as employees have the statutory right to request flexible working from day one of their employment.

As long as the employee has not made two flexible working requests during the preceding 12 months and does not currently have a live application of the same nature under way, they can submit a request for flexible working.

Key changes to legislation

The Flexible Working (Amendment) Regulations 2023 have been updated so that making a flexible working request is a day-one statutory right for all employees for requests made on or after 6 April 2024. (Previously, 26 weeks of continuous employment was required.)

The Employment Relations (Flexible Working) Act 2023 has also been amended. The changes are as follows:

• Entitlement to make two requests: Employees can make two flexible working requests in any 12-month period. (Previously, this was limited to one request every 12 months.)
• Quicker response time: Employers are required to deal with requests (including appeals) within two months, rather than three, unless an extension is agreed.
• No reason needed: Employees are no longer required to explain the effect that acceptance of their request might have on the business, or how this could be minimised.
• Mandatory consultation: To prevent employers from defaulting to saying ‘no’ to a request, they are required to consult with employees on the practicalities and reasons for the request before they can refuse it. This makes the process more transparent, with a greater emphasis on compromise.

What action do you need to take?

While some firms have offered day-one flexible working for some time, this has not necessarily been applied across the board. For those not already offering this, it is now crucial to do so.

Although the new right may not be widely known yet – a survey published by Acas in December found that seven out of 10 employees were not aware of the impending changes – employers need to ensure they are compliant with the new legislation.

Failure to do so may have financial, reputational and regulatory consequences, in addition to increasing the risk of discrimination claims, such as indirect sex discrimination or failure to make reasonable adjustments.

Furthermore, there are numerous benefits to offering a diverse range of flexible working arrangements.

These advantages are significant when it comes to attracting and retaining talented staff. As the chief executive of Acas stated: “There has been a substantial shift in flexible working globally, which has allowed more people to better balance their working lives and employers have also benefitted from being an attractive place to work.”

The growing trend towards flexible working was highlighted in a 2021 Social Impact Report published by Timewise, which showed that 26% of job adverts now offer flexible working, compared to 9% in 2015.

Conversely, recent research from the CIPD emphasises the risks faced by employers who do not provide flexible working options, estimating that approximately 4m people have changed careers due to lack of flexibility at work.

How to adapt

Considering these factors, it is evident that taking flexible working seriously is not just advisable, but essential for businesses seeking sustainable growth.

So, what can you do to accommodate the changes?

1   Review your policies

Update your firm’s flexible working policies to reflect the new law – this should include familiarising yourself with Acas’ revised Code of Practice on requests for flexible working, which came into effect on 6 April 2024.

Access Legal has simplified this process by providing updated template policy documents as part of its Policies and Precedents for Law Firms library.

While it is not a legal requirement to have a flexible working policy, it is best practice to have one to set out the firm’s stance and legal obligations to employees.

It is also a requirement for Lexcel-accredited firms under v6.1 of the Lexcel Standard.

2   Evaluate your internal processes

Ensure there is a clear understanding of who is responsible for what, to enable you to comply with the reduced two-month decision-making timeframe.

3   Offer training and support

Inform managers on the changes and offer training for those who require more support – this should include how to handle requests fairly, reasonably and in compliance with additional legal duties under the Equality Act 2010. You should also outline when to seek input from HR.

4   Assess what will (and won’t) work

Given the heightened emphasis on compromise, the leadership team and department heads should assess what will and won’t work for the business, with a focus on being as adaptable as possible, to create an inclusive workplace and positive culture around flexible working.

As the revised Acas code states: “the starting point should be to consider what may be possible.”

5   Prioritise information security

Enable flexible working with a secure case and practice management system. Certain types of flexible working, such as remote working, increase cyber-security risks; it is therefore crucial to have secure systems in place.

Access Legal’s case management software is built with security and compliance in mind to help firms keep their clients’ data safe. See the Cyber Security Hub for law firms for more information, which includes resources such as a free cyber-security audit and a guide to cyber security for law firms.